March 20, 2014
STATE OF OREGON, Plaintiff-Adverse Party,
JAMES MICHAEL FRANCIS LOPES, aka James Michael Francis Lopez, Defendant-Relator
Argued and Submitted: December 4, 2013.
CC 120833467. Original proceeding in mandamus.[*]
State v. Lopes, 354 Or. 63, 308 P.3d 207, (2013)
Peremptory writ of mandamus to issue.
Laura Graser, Portland, argued the cause and filed the brief for defendant-relator.
Leigh A. Salmon, Assistant Attorney General, Salem, argued the cause and filed the brief for plaintiff-adverse party. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Erin C. Lagesen, Assistant Attorney General, Salem, filed a brief for amicus curiae Oregon Health Authority. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Julia E. Markley, Perkins Coie LLP, Portland, filed a brief for amicus curiae The American Civil Liberties Union of Oregon, Inc. With her on the brief were Kristina J. Holm and Joanna T. Perini.
[355 Or. 74] WALTERS, J.
Relator seeks a peremptory writ of mandamus directing the Multnomah County Circuit Court to vacate an order authorizing the involuntary administration of medication for the purpose of restoring relator's trial competence. For the reasons that follow, we conclude that, although trial courts have statutory authority to enter such orders, the order that the trial court entered in this case did not comport with the due process requirements of the federal constitution as articulated in Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003). Accordingly, we issue the writ.
The uncontested facts are as follows. Relator was arrested on August 16, 2012, and charged with attempted sex abuse in the first degree. ORS 163.427(1)(a)(A). The indictment alleges that relator attempted to subject a person under 14 to sexual contact by attempting to touch a sexual or intimate part
of her body. Attempted sex abuse in the first degree is a class C felony.
Relator remained in jail pending trial, but, on October 4, 2012, the court found reason to doubt relator's fitness to proceed and, after an evaluation, found relator unable to aid and assist in his defense. On November 19, 2012, the court committed relator to the Oregon State Hospital (hospital) to be treated until fit.
On January 2, 2013, the hospital sent the trial court a letter stating that there was no substantial probability that relator would gain or regain the ability to stand trial in the foreseeable future. In the accompanying report, the evaluator specifically stated that " [w]ithout an ability to provide psychiatric medication interventions there is no substantial probability that [relator] will regain the ability to proceed within the foreseeable future." (Emphasis added.) Relator was discharged from the hospital and returned to jail.
The court ordered that relator be returned to the hospital for further evaluation; the hospital again informed the court that " the unfortunate reality [is] that we cannot medicate him against his will [because] he does not have an immediate problem with violence or grave disability related to his own self-care."
[355 Or. 75] On February 11, 2013, relator moved to dismiss the charges against him. The court denied the motion " without prejudice." On March 27, 2013, the hospital sent another letter to the court reiterating that there was no substantial probability that relator would regain competency because relator " refuses to take psychotropic medication."
A hearing was set on relator's motion to dismiss. During the hearing, the trial court focused on two issues: first, whether the court had authority to order that relator be involuntarily medicated; and, second, if the court had that authority, whether the state had proved that an order requiring involuntary medication would comport with the constitutional limitations articulated in Sell .
As to the first issue, the trial court considered memoranda and arguments presented by both parties and concluded that it had authority to order that relator be involuntarily medicated. The court then heard testimony on the factors required to support an order under Sell . Relator's treating psychiatrist testified that there was a substantial likelihood that medication could help relator aid and assist and that administration of antipsychotic medication was medically appropriate. On June 3, 2013, the court entered an order, which we will refer to as the Sell order, including the following findings and reaching the following conclusions:
" 5. [Relator] is charged with a serious crime against a person or a serious crime against property. (The facts of the individual case must be taken into consideration and outlined in making this determination.) The facts are outlined in the State's Probable Cause Affidavit and incorporated herein, as Exhibit 1.
" 6. Administration of the medication to [relator] is substantially likely to render [relator] competent to stand trial.
" 7. The medication to be administered is substantially unlikely to have side effects that will interfere significantly with [relator]'s ability to assist counsel in conducting a trial defense.
" 8. Any alternative, less intrusive treatments are unlikely to achieve substantially the same results.
" 9. There are no less intrusive means for administering the medication.
[355 Or. 76] " 10. Administration of the medication to [relator] is medically appropriate, i.e., in [relator]'s best medical interest in light of his medical condition.
" 11. There are important governmental interests at stake in bringing [relator] to trial, and the involuntary administration of the proposed medication will significantly further those state interests and are necessary to further those interests."
(Emphasis in original; bold face deleted.) The trial court also ordered that relator be medicated in accordance with a list of medications and dosages approved by relator's psychiatrist.
At relator's request, the trial court immediately entered a stay of the Sell order to permit relator to challenge it in this court.
Relator then petitioned this court for a writ of mandamus directing the trial court to vacate the Sell order. This court stayed the trial court's order and issued an alternative writ of mandamus directing the trial court either to vacate the Sell order or to show cause for not doing so.
This case presents two distinct questions:
1. Do Oregon trial courts have authority to issue orders authorizing hospitals to involuntarily medicate patients for the purpose of restoring trial competency?
2. If trial courts do have that authority, did the trial court's order in this case comport with the due process requirements of the federal constitution as articulated in Sell ?
TRIAL COURT AUTHORITY TO ISSUE SELL ORDERS
With regard to the first question, relator argues that Sell assumes, but does not grant, judicial authority to issue Sell orders, and that, without explicit statutory authorization, trial courts lack that power. Moreover, relator contends, hospital patients have a statutory right to refuse antipsychotic medication, and that right may not be denied for the purpose of restoring competency to stand trial.
In considering relator's arguments, we must analyze the Oregon statutes and administrative rules that apply when a trial court finds a defendant incompetent to [355 Or. 77] aid and assist at trial and commits the defendant to a hospital for treatment. As context for that analysis, however, we begin with the United States Supreme Court's reasoning in two cases that address an individual's constitutional right to due process when the state seeks to medicate the individual against his or her will: Sell and Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990).
The petitioner in Harper was a convicted prisoner who had been committed to a mental health facility within the state prison system. When the petitioner refused to take antipsychotic medication, the medical authorities followed a hearing process authorized by the facility's administrative rules and obtained an order that permitted the facility to administer the medication involuntarily. 494 U.S. at 214. The applicable rules permitted the involuntary medication of inmates who were a danger to themselves or others or who were gravely disabled. Id. at 215. When the case reached the United States Supreme Court, the Court upheld the facility's order and rejected the petitioner's argument that, because the order impinged on the petitioner's liberty interest, due process required a judicial hearing in addition to the administrative process that the petitioner had been afforded. Id. at 222.
In Sell, a magistrate judge had committed the defendant to a treatment facility to restore his ability to aid and assist in his defense, and later had entered an order permitting the facility to involuntarily medicate the defendant. 539 U.S. at 171. On appeal, the federal district court determined that the defendant was not dangerous as that term was used in Harper but nevertheless affirmed. Id. at 173-74. In the United States Supreme Court, the issue was whether due process precluded a court from ordering the involuntary administration of antipsychotic medication to render a defendant competent to stand trial. The Court held [355 Or. 78] that the constitution permits such an order, but " only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests." Sell, 539 U.S. at 179. Accordingly, the Court explained, a court must consider four factors and make findings
as to each before it approves such an order. Id. at 179-84.
Relator correctly argues that Sell did not grant trial courts authority to issue Sell orders. Sell arose as an interlocutory appeal from a magistrate's order, and the Supreme Court did not have occasion to consider or explore the statutory basis for the trial court's authority to issue a Sell order. Relator therefore is correct that trial court authority to issue Sell orders must be found in Oregon law.
Unlike many states, Oregon has not enacted statutes that explicitly grant trial courts authority to enter Sell [355 Or. 79] orders or that implement the Court's decision in Sell . The Oregon legislature enacted ORS 161.360 to 161.370, the statutes that govern a defendant's incompetence to stand trial, in 1971, before Sell was decided. Or Laws 1971, ch 743, § § 50 to 52. Neither those statutes as originally enacted nor the amendments to those statutes expressly grant trial courts authority to enter Sell orders or set forth the criteria that a court should apply when considering whether to grant such an order. However, the state argues, the broad authority that those statutes do grant to trial courts includes, by implication, authority to issue Sell orders in appropriate circumstances. To assess the state's argument, we outline the applicable statutory framework.
Under ORS 161.360(1), if a trial court " has reason to doubt the defendant's fitness to proceed by reason of incapacity," the court may order an examination. The court may call witnesses on the issue or order the defendant
to be evaluated by a psychiatrist or psychologist. ORS 161.365. [355 Or. 80] The court then must determine whether the defendant is fit to proceed, and, if the issue is contested, hold a hearing. ORS 161.370(1). If the court determines that the defendant lacks fitness to proceed, the court must suspend the criminal proceeding. ORS 161.370(2). If the court decides that the defendant is " dangerous to self or others as a result of mental disease or defect" or that " the services and supervision necessary to restore the defendant's fitness to proceed are not available in the community," the court " shall commit the defendant" to a hospital or another facility designated by the Oregon Health Authority (OHA). ORS 161.370(2)(a).
On commitment, ORS 161.370(5) requires the hospital to evaluate the defendant. Within 90 days of the defendant's [355 Or. 81] commitment, the hospital must notify the court whether (1) the defendant is presently fit to stand trial; (2) there " is no substantial probability that, in the foreseeable future, the defendant will gain or regain the capacity to stand trial; " or (3) there " is a substantial probability that, in the foreseeable future, the defendant will gain or regain the capacity to stand trial." ORS 161.370(5)(b).
On notification, the trial court must determine whether it concurs and take appropriate action. ORS 161.370(9). If the trial court determines that there is no substantial probability that the defendant will gain or regain the capacity to stand trial in the foreseeable future, the court must either discharge the defendant or initiate civil commitment
proceedings. ORS 161.370(10). If the [355 Or. 82] court determines, instead, that there is a substantial probability that the defendant will gain or regain the capacity to stand trial, then, " unless the court otherwise orders," the " defendant shall remain in the [hospital's] custody where the defendant shall receive treatment designed for the purpose of enabling the defendant to gain or regain capacity." ORS 161.370(6)(a). In that event, the hospital must provide the court with " an estimate of the time in which the defendant, with appropriate treatment, is expected to gain or regain capacity," ORS 161.370(5)(b)(C), and " submit a progress report to the committing court, concerning the defendant's capacity or incapacity, at least once every 180 days ." ORS 161.370(6)(a).
The procedures prescribed by ORS 161.370 take place within a specific set of time constraints. No defendant may be committed under ORS 161.370 for a period greater than the maximum period that the defendant could have served if convicted, or for more than three years, whichever period is less. ORS 161.370(7)(a). Further, if at any point the trial court determines that so much time has elapsed that resuming the trial would be unjust, the court must dismiss the charges and either discharge the defendant or [355 Or. 83] initiate civil commitment proceedings. ORS 161.370(4). Similarly, if the court determines that the defendant has been in the hospital's custody for a period longer than the maximum sentence to which the defendant could be sentenced if convicted, or three years, the court must discharge the defendant or initiate civil commitment proceedings. ORS 161.370(10). Finally, if the defendant does at some point regain fitness to stand trial, and if the defendant is then convicted, any sentence imposed must be reduced
by the amount of time that the defendant was in the custody of the hospital prior to trial. ORS 161.370(12).
In arguing that that statutory framework grants trial courts broad general authority to enter orders regarding defendants who are incompetent to stand trial and that that general authority includes the authority to enter Sell orders, the state particularly relies on ORS 161.370(6)(a), which, again, provides:
" If the [hospital] determines that there is a substantial probability that, in the foreseeable future, the defendant will gain or regain the capacity to stand trial, unless the court otherwise orders, the defendant shall remain in the [hospital's] custody where the defendant shall receive treatment designed for the purpose of enabling the defendant to gain or regain capacity."
In the state's view, that provision authorizes a trial court to order a hospital to administer specified treatment designed to enable the defendant to gain or regain capacity, and that [355 Or. 84] such treatment may include the involuntary administration of antipsychotic medication.
Relator argues that ORS 161.370(6)(a) instructs that the defendant receive treatment at a particular place -- a hospital -- and, at most, instructs the hospital to provide the defendant with treatment that the hospital deems appropriate. According to relator, ORS 161.370(6)(a) is not a grant of authority to a trial court to determine the requisite treatment. A court has no role in prescribing treatment; a court's role is limited to ordering a defendant's commitment to or release from a hospital.
The question that this case presents lies at the intersection of the parties' arguments. Here, the hospital has determined that the only treatment that will render relator competent to stand trial is antipsychotic medication. The hospital deems that treatment appropriate but has declined to order it because relator refuses it and does not have " an immediate problem with violence or grave disability related to his own self-care." Thus, this case does not present the question whether a trial court has authority to order a defendant to be involuntarily medicated when a hospital opposes such treatment. Rather, the question here is whether a trial court has authority to enter a Sell order that will enable a hospital to act in the manner that the hospital determines to be medically appropriate.
The hospital's position -- that without a court order it cannot require relator to be medicated against his will for the sole purpose of rendering him competent to stand trial -- accords with the requirements of due process as articulated in Harper and Sell . As noted, Harper holds that a court proceeding is not necessary before a hospital may administer involuntary medication to a patient who is a danger to self or others or who has a grave disability. Sell holds that a hospital may administer involuntary medication to a patient who is incompetent to stand trial only if a court makes four specified sets of findings.
Oregon law is consistent with the holdings in those cases. ORS 426.385(3) permits a hospital to administer certain " treatment procedures" without the consent of a " person [355 Or. 85] with mental illness" in accordance with administrative rule. That statute provides, in part:
" A person with mental illness committed to the authority shall have the right to be free from potentially unusual or hazardous treatment procedures, including convulsive therapy, unless the person has given express and informed consent * * * . This right may be denied to a person for good cause as defined in administrative rule only by the director of the facility in which the person is confined, but only after consultation with and approval of an independent examining physician."
Accordingly, OHA has adopted administrative rules which provide that all persons who are patients at state institutions for the mentally ill, including those who are committed
under ORS 161.370, have a right to refuse antipsychotic medication. See OAR 309-114-0005(10) (defining " patient" to mean an individual who is receiving treatment in state mental institution); OAR 309-114-0010(1)(a) (stating that " patients" may refuse significant procedures); OAR 309-114-0005(3) (defining " committed" to mean committed under statutes including ORS 161.370); OAR 309-114-0020(1) (setting out good cause to administer significant procedure without consent to person " committed" to OHA); OAR 309-114-0020(1)(e) (requiring additional findings for patients under ORS 161.370 jurisdiction). Those rules then permit a hospital to deny that right in certain delineated circumstances. At the time that relator was committed to the hospital, former OAR 309-114-0010 (2011) specified three instances in which a hospital could administer treatment without a patient's consent: if a patient was legally incapacitated, if [355 Or. 86] there was an emergency, or if the hospital determined that " good cause" existed for the denial of a patient's right to consent. Under OAR 309-114-0020(1)(e), " good cause" exists when " the patient is being medicated because of the patient's dangerousness or to treat the patient's grave disability," but not when requested " for the sole purpose of restoring trial competency."  Thus, consistently with Harper and Sell, ORS 426.385(3) and related administrative rules permit a hospital to independently administer antipsychotic medication against a patient's will when the patient is dangerous or gravely disabled, but not when the medication is administered solely to enable the patient to aid and assist at trial. Those restrictions explain why, in this case, the hospital did not administer the antipsychotic medication that it deemed appropriate, but instead informed the court that the administration of that medication was necessary to enable relator to gain capacity.
[355 Or. 87] The question before us is whether Oregon trial courts have authority that hospitals do not have -- authority to issue orders that, under Sell, permit hospitals to administer appropriate treatment to enable defendants to regain capacity to stand trial. Relator contends that trial courts are subject to the same limitations that ORS 426.385(3) and related regulations impose on hospitals and
that those provisions prohibit trial courts as well as hospitals from ordering involuntary medication to restore trial competence.
ORS 426.385(3) was enacted in 1973 as part of revisions to Oregon's civil commitment procedures. Laird C. Kirkpatrick, Oregon's New Mental Commitment Statute: The Expanded Responsibilities of Courts and Counsel, 53 Or L Rev 245, 256 (1974). ORS 426.385(3) applies to a " person with mental illness"  who is committed to the Oregon Health Authority. In this case, no court has found that relator meets the definition of a " person with mental illness," and no court has civilly committed him. Therefore, it is not [355 Or. 88] clear that relator is included within the class of persons protected under ORS 426.385(3).
Furthermore, even if relator is entitled to the protections of ORS 426.385(3), it is not clear that that statute prohibits a trial court from entering an order for involuntary medication. The statute grants a right to be free from certain procedures unless the person has given express and informed consent, but also allows a hospital director to deny that right for good cause as defined in administrative rule. Thus, one interpretation of ORS 426.385(3) is as a limitation on a hospital's independent decisionmaking authority requiring that, when a hospital acts independently, it act only in accordance with administrative rule. Under that interpretation, a hospital would not violate the statute if it were acting pursuant to a court order rather than independently. OHA's administrative rules also can be understood to govern hospitals when they act independently, but not when they act pursuant to court order.
Those are not the only plausible interpretations of ORS 426.385(3) and related regulations; however, we need not resolve that issue for purposes of deciding this case. OAR 309-114-0010 has been amended and now allows hospitals to [355 Or. 89] administer medication without the consent of a patient " pursuant to a valid court order." OAR 309-114-0010(1)(b)(D). Thus, even if ORS 426.385(3) applies and prohibits a hospital from administering involuntary medication except in accordance with administrative rule, current OHA rules permit a hospital to act pursuant to a valid court order.
Having concluded that ORS 426.385(3) and related regulations do not categorically prohibit Oregon trial courts from issuing Sell orders, the question remains whether trial courts have the authority to do so. We conclude that they do. Under ORS 161.370, trial courts may commit defendants who are unable to aid and assist to a state hospital and the hospital must provide such defendants with " appropriate" treatment. See ORS 161.370(5)(b)(C) (requiring hospital to inform court of time estimate in which defendant, with appropriate treatment, is expected to gain or regain capacity). More particularly, a hospital must provide treatment that is " designed for the purpose of enabling the defendant to gain or regain capacity." ORS 161.370(6)(a). When a hospital determines that, to fulfill that obligation, the appropriate treatment is the involuntary administration of antipsychotic medication, and that it cannot administer that treatment to comport with due process or statutory or regulatory limitations without a valid court order, then the hospital cannot carry out its treatment obligations unless the court has authority to make such an order. ORS 161.370 grants trial courts authority to commit defendants to hospitals for treatment that is designed to restore their trial competency. By implication, that statute also grants trial courts authority to issue Sell orders when necessary to enable hospitals to provide that treatment.
We do not accept relator's argument that the absence of explicit authority to issue Sell orders means that trial courts are precluded from acting. ORS 161.370 grants Oregon trial courts and hospitals, acting together in their respective roles, the power to commit and treat defendants so that they will be able to aid and assist at trial. " [W]here a power is conferred by an act, everything necessary to carry [355 Or. 90] out that power and make it effectual and complete will be implied." Pioneer Real Estate Co. v. City of Portland, 119 Ore 1, 10, 247 P 319 (1926). See also Lane Transit Dist. v. Lane County, 327 Ore 161, 168 n 4, 957 P.2d 1217 (1998) (citing Pioneer Real Estate in support of the proposition that an agency's power to appoint a manager " carries with it an implied power to fix the terms" of the manager's employment). When a hospital determines that involuntary treatment is necessary to enable a defendant to regain trial capacity, we conclude that trial courts have the power to order that such treatment be administered -- consistent, of course, with statutory and constitutional limits on the exercise of that power.
STANDARDS FOR ISSUANCE OF A SELL ORDER
We now proceed to the second question: whether the order that the trial court issued in this case comported with the due process requirements of the federal constitution. In Sell, the United States Supreme Court explained that two of its prior cases, Harper and Riggins, had established that an individual has a constitutionally protected liberty interest in avoiding involuntary administration of psychotropic drugs that only an essential or overriding state interest may overcome. Sell, 539 U.S. at 178-79. The Court then concluded that the government's interest in bringing an individual charged with a serious crime may be sufficiently essential or overriding when, in light of the efficacy, the side effects, the possible alternatives, and the medical appropriateness of a particular course of antipsychotic drug treatment, the government's need for the treatment is sufficiently important
to overcome the individual's protected interest in refusing it. Id. at 183.
As a threshold matter, a court must conclude that the involuntary treatment is not otherwise authorized. Id. at 181-82. A court need not decide whether forced medication is permissible to restore a defendant's competency if forced medication is warranted for another reason such as the fact that a defendant poses a danger to self or others and may be medicated under Harper. Id.
If the sole basis for an order for involuntary medication is restoration of trial capacity, a court must make four [355 Or. 91] findings. Id. at 180-82. As the parties acknowledge, a court must conclude (1) that important state interests are at stake in prosecuting the defendant; (2) that medication will significantly further those important state interests, because it is substantially likely that the medication will restore the defendant to competency and substantially unlikely that the medication will cause side effects that will impair the fairness of the trial; (3) that the medication is necessary to further those important state interests, because there are no less intrusive treatments that would produce the same results; and (4) that the administration of the medication is medically appropriate, because it is in the patient's best medical interest in light of his medical condition. Id.; United States v. Ruiz-Gaxiola, 623 F.3d 684, 687-88 (9th Cir 2010) (summarizing Sell factors).
" The Sell factors do not represent a balancing test, but a set of independent requirements, each of which must be found to be true before the forcible administration of psychotropic drugs may be considered constitutionally permissible." Ruiz-Gaxiola, 623 F.3d at 691; United States v. Hernandez-Vasquez, 513 F.3d 908, 913 (9th Cir 2008) (four findings are " required" ). Because of the important liberty interests at stake, to comport with due process an order compelling involuntary administration of antipsychotic medication requires " thorough consideration and justification" and " especially careful scrutiny," and must be based on " a medically-informed record." Ruiz-Gaxiola, 623 F.3d at 692.
We begin our review of the trial court's application of the Sell factors with the threshold issue: whether the order is warranted for a purpose other than restoring relator's fitness for trial. In this case, the hospital determined that relator was not dangerous as that condition is defined in OHA rules and used in Harper, and the trial court agreed. Although the trial court did not include in its order an express conclusion that involuntary medication was not otherwise warranted, no party argues to the contrary and the record does not disclose a basis for a different conclusion.
[355 Or. 92] We therefore proceed to the first Sell factor -- the requirement that important governmental interests be at stake. In Sell, the Supreme Court explained that bringing a defendant to trial on a " serious" charge is a sufficiently important governmental interest to justify involuntary medication. However, an analysis of the facts of the individual case is required and the government's interest may be lessened by " [s]pecial circumstances," such as the likelihood that the defendant will be civilly committed if he or she is not tried or the fact that the defendant already has been confined for a significant amount of time. 539 U.S. at 180. Accordingly, the Court commented, instances of involuntary medication " may be rare." Id.
Federal and state courts generally agree that the question whether a charge is " serious" under Sell is a question of law. See, e.g., United States v. Diaz, 630 F.3d 1314, 1331 (11th Cir 2011); United States v. Fazio, 599 F.3d 835, 840 (8th Cir 2010) ; United States v. Green, 532 F.3d 538, 546 (6th Cir 2008); Hernandez-Vasquez, 513 F.3d at 915-16; United States v. Palmer, 507 F.3d 300, 303 (5th Cir 2007); United States v. Bradley, 417 F.3d 1107, 1114, 1116 (10th Cir 2005);
United States v. Gomes, 387 F.3d 157, 160 (2d Cir 2004); State v. Seekins, 299 Conn. 141, 156, 8 A.3d 491 (2010); State v. Cantrell, 2008 - NMSC 016, 143 NM 606, 611, 179 P.3d 1214 (2008); State v. Barzee, 2007 UT 95, 177 P.3d 48, 56 (Utah 2007). We agree.
In considering whether a charge against a defendant is " serious," most federal courts have looked to the statutory maximum sentence that may be imposed should the defendant be convicted as an indication of the seriousness with which the legislature views the charge. Some federal courts look only to the potential maximum sentence that a defendant may face if convicted; others also consider the sentence that a defendant would be likely to receive under the United States Sentencing Guidelines (guidelines). The Sixth and Fourth Circuits look to maximum statutory penalties rather than to the guidelines to determine seriousness. Green, 532 F.3d at 546 (concluding that the guidelines are not an objective measure of a crime's seriousness); United States v. Evans, 404 F.3d 227, 237-38 (4th Cir 2005) (concluding [355 Or. 93] that, although consulting the guideline range would " respect legislative judgments," such consultation would be " unworkable because at this stage in the proceedings, there is no way of accurately predicting what that range will be" ). The Ninth and Tenth Circuits, however, rely, to varying degrees, on the guidelines to help determine seriousness. See Hernandez-Vasquez, 513 F.3d at 918-19 (the guidelines are " the best available predictor of the length of a defendant's incarceration" ); United States v. Valenzuela-Puentes, 479 F.3d 1220, 1226 (10th Cir 2007) (considering both maximum statutory penalties and the guidelines).
In most of the cases in which federal courts have considered the constitutionality of Sell orders, the crimes charged have been punishable by five or more years in prison, and courts generally have concluded that such crimes are " serious" under Sell. See, e.g., United States v. Nicklas, 623 F.3d 1175, 1178-79 (8th Cir 2010) (maximum statutory penalty of five years); United States v. White, 620 F.3d 401, 411 (4th Cir 2010) (maximum penalty of over 10 years); Valenzuela-Puentes, 479 F.3d at 1226 (maximum penalty of 20 years). However, some courts have adopted a categorical approach, deciding that crimes carrying a sentence of more than six months' imprisonment are " serious" under Sell . See United States v. Evans, 293 F.Supp.2d 668, 674 (WD Va 2003); State ex rel DB, 214 S.W.3d 209, 213 (Tex App 2007).
Although the sentence that a defendant may receive is an important and often determinative factor in determining the " seriousness" of charges under Sell, a defendant's potential sentence is not the only factor that courts consider. Courts also consider the " nature of the crime." See, e.g., United States v. Sanderson, 521 Fed.Appx. 232, 236 (4th Cir 2013) cert den, 134 S.Ct. 661, 187 L.Ed.2d 437 (2013) (considering " nature of the crime" to conclude that failure to register as sex offender was " serious" for purposes of Sell order); Hernandez-Vasquez, 513 F.3d at 919 (examining other factors such as prior offenses, predatory nature of offenses, and closeness in time of prior offenses to determine that reentry of deported alien constituted " serious" crime); Valenzuela-Puentes, 479 F.3d at 1226 (considering " nature or effect of the underlying conduct" ).
[355 Or. 94] In this case, the trial court's order included a finding that relator was charged with a Class C felony; it did not include a finding as to the maximum sentence for that charge or the sentence that relator likely would face on conviction. Although the determination of whether a crime is " serious" is a question of law, the sentence that a defendant likely will face if convicted may be, in some instances, a question of fact, and it is helpful when a trial court specifically includes both the maximum and the likely sentence that a defendant may face in its Sell order. Because this and other questions we later address are issues of first impression, we consult the record for edification.
At the Sell hearing, relator represented that, if convicted, he would be " a 7I on the gridblock," which meant that " based on the amount of time he's already had in * * * there is very little the State would be able to do to [relator] if convicted of this crime, because he's almost * * * had an entire year in." The prosecutor agreed that relator's
charged offense was a " Level 7 presumptive probation grid." The court stated that " there's little that could be done by way of custody," and added that the penalty that relator was facing " at least in terms of the incarceration that he's facing were he convicted, is minimal * * * [or] nonexistent." From that exchange, it seems that the parties and the court assumed that the maximum sentence that relator would receive at sentencing would likely result in confinement of no more than one year, but that, because relator had already been confined for that period and would receive credit for time served, he would not be sentenced to additional confinement if convicted. See ORS 161.370(12); ORS 137.320(4) (preconviction incarceration must be credited toward term of sentence). For purposes of this decision, we accept the trial court's understanding.
It also appears from the record that the court based its determination that relator is " charged with a serious [355 Or. 95] crime against a person," at least in part on the nature of that crime. The court reasoned that relator is alleged to have attempted to touch an eight-year-old child and that that is a " serious matter" from a public safety standpoint; the court also noted, that, for relator, it is a " serious matter" from a " reputational standpoint." Thus, the court continued, both the state and relator had a significant interest in proceeding to trial.
From our review of the record, we can surmise that relator was charged with a felony that typically carries a sentence not exceeding one year in confinement. Although that charge may not be as " serious," at least in terms of potential sanction, as the charges considered in other cases, it is a charge that, if proved, would establish that relator subjected a child to a substantial risk of harm and would expose relator to significant reputational consequences. On this record, we therefore conclude that the trial court did not commit legal error in concluding that attempted first-degree sexual abuse is a " serious" crime under Sell .
The question remains, however, whether, in this particular case, the government's interest in prosecuting relator is lessened by relator's " [s]pecial circumstances." Sell, 539 U.S. at 180. In Sell, the Court noted that the fact that a defendant " has already been confined for a significant amount of time" may " affect" the state's interest in prosecution. Id. at 180. Accordingly, some courts have relied on the length of pretrial confinement as a basis for holding that Sell orders were not justified. For instance, in United States v. Grigsby, 712 F.3d 964, 974 (6th Cir 2013), the court explained that, prior to conviction, the defendant had been held in detention for a period roughly equivalent to the length of any prison sentence that he ultimately might receive, and that, with credit for the time served, the defendant would not be subjected to additional incarceration or conviction. The court therefore concluded that the government's interest in prosecuting the defendant was diminished such that a Sell order was impermissible. Similarly, in United States v. Weinberg, 743 F.Supp.2d 234, 237-38 (WDNY 2010), the district court [355 Or. 96] found that the government's interest was not sufficient to justify a Sell order despite the fact that the defendant was accused of a crime with a five-year maximum sentence. The court reasoned that, because the defendant faced a likely guidelines sentence of 6 to 12 months in prison and had already spent 21 months in custody, the state's interest in prosecution was so diminished that a Sell order could not be upheld.
However, as the state asserts, a government's interest in prosecution is not limited to confinement but also may include rehabilitation, supervision, and deterrence.
See United States v. Gutierrez, 704 F.3d 442, 451 (5th Cir 2013) cert den, 133 S.Ct. 2380, 185 L.Ed.2d 1094 (2013) (government's interest in prosecution not extinguished by a defendant's confinement prior to trial because government retained interest in " exacting retribution" against the defendant, " incapacitating" the defendant, " express[ing] society's disapproval of such conduct and potentially deter[ring] others from engaging in it, * * * [and] authoriz[ing] the district court to impose a term of supervised release" ); United States v. Bush, 585 F.3d 806, 815 (4th Cir 2009) (pretrial detainment did not defeat government's interest because prosecution " conveys a message about [the crime's] seriousness and its consequences[,] * * * conviction may subject [defendant] to a period of supervised release[,] * * * [and] the fact of a conviction would create certain limitations on [the defendant's] subsequent activities, such as her ability to obtain and own firearms" ).
Courts generally consider the question whether the government's interest in prosecution is lessened by a defendant's " special circumstances" such that an order for involuntary medication is not justified in a particular case to be a component of the first Sell factor and conduct review for legal error. See Nicklas, 623 F.3d at 1178 (first Sell factor, including whether " special circumstances" existed, reviewed as a question of law); Fazio, 599 F.3d at 839 (same). However, when underlying facts may bear on that question, some courts have used a sufficiency of evidence standard of review. United States v. Dillon, 738 F.3d 284, 291 (DC Cir 2013) (reviewing underlying facts for sufficiency); Evans, 404 F.3d at 236 (same). We agree with that mode of analysis.
[355 Or. 97] In this case, relator has been in custody for what was, at the time of the Sell hearing, close to 12 months; he now has been in custody for more than 18 months. At the time of the hearing, relator already had been confined for approximately the same length of time that he would be confined if convicted. Relator now has been confined for an additional six months. Relator argues that that " special circumstance" lessens the state's interest in proceeding to trial, rendering that interest insufficient to justify a Sell order. The state counters that relator's conviction would serve governmental interests beyond confinement. Those interests, the state argues, " include the ability to ensure that [relator] receives supervision and treatment in the community if found guilty, thereby assisting [him] in avoiding similar behavior in the future."
The trial court's order does not include factual findings that address either side of that argument. When we look beyond the court's order to the record, we see, as noted, that the trial court recognized that relator's conviction would not advance the state's interest in confinement: the court remarked that the chances that conviction would result in confinement beyond the time that relator already had served were " minimal" if not " non-existent." However, the court observed, conviction could result in probation or " registration." Those measures, the court explained, were " community safety-related measures that would * * * and could be imposed."
Although the record therefore reveals that relator's prosecution and conviction potentially could advance governmental interests beyond relator's continued confinement, the record does not include relevant details about those interests. For instance, there is no evidence about the period of time that relator would be subject to probation, the conditions that would be imposed during probation, or the extent to which relator would be supervised or treated. [355 Or. 98] We recognize that the trial court was experienced in such matters and in all probability was aware of or could anticipate or predict that information. However, details about the " community safety-related measures" that the court mentioned do not appear in the record and the state does not argue what those measures
might be. What we do know is that by arresting, confining, and treating relator for more than the time that relator would be confined on conviction, the government already has satisfied, to a significant degree, the interests in retribution, deterrence, and rehabilitation that confinement for criminal conduct is intended to achieve.
Although courts have upheld Sell orders despite a substantial period of pretrial confinement, the facts in this case are significantly different from the circumstances in those cases. In Gutierrez, 704 F.3d at 450-51, the defendant was charged with threatening to kill the President, a former President, and a federal law enforcement officer; he was charged based on evidence of over 100 telephone calls made over a two-month period. Each charge carried a maximum sentence of at least five years, and the court observed that the defendant could be sentenced to a maximum of 20 years. The fact that the defendant potentially could receive a lesser guidelines sentence did not persuade the court that the crimes were not serious or that the government's interests were extinguished. Id.
In Bush, 585 F.3d at 809, the defendant was charged with two counts of threatening a federal judge. Each charge carried a maximum 10-year sentence, although the parties agreed that the defendant's sentence under the applicable sentencing guidelines potentially could be no greater than the time that she likely would be confined until competent. Id. at 814-15. The court decided that, because a conviction would carry an important message about the crime's seriousness and allow the government to place limitations on the defendant's ability to subsequently acquire a firearm, the government retained an important interest in bringing the defendant to trial. Id. at 815.
In those cases, the length of the maximum sentences for the charged crimes, the heightened need for deterrence, [355 Or. 99] and the specific restrictions that a conviction would allow the government to impose indicated a substantial governmental interest in defendants' convictions, despite the defendants' pretrial incarceration. Here, neither the trial court's order nor the record demonstrates that, after having arrested, treated, and confined relator for more than 18 months, the state's continuing interest in restoring relator's competence and potentially convicting him are so important that they justify relator's involuntary medication. On this record, the first Sell factor is not satisfied, and the trial court erred in concluding otherwise.
Although our conclusion on the first Sell factor requires vacation of the trial court's Sell order, we nevertheless proceed to address the remaining Sell factors. We do so because our decision today does not preclude the state from seeking another Sell order in this or another case in the future, and we think that additional analysis may be of benefit to the bench and bar in that eventuality. We therefore turn to the second Sell factor -- whether involuntary medication will significantly further the state's interest in prosecution.
As the state acknowledges, to reach that conclusion, the trial court was required to make two factual findings -- that the administration of medication is substantially likely to render relator competent to stand trial and that such medication is substantially unlikely to have side effects that will interfere significantly with relator's ability to assist counsel. See Sell, 539 U.S. at 180-81
(requiring findings). Because the [355 Or. 100] involuntary administration of medication implicates an individual's constitutional liberty interests and carries a risk of error and potential harm in that important context, all of the federal circuit courts that have addressed the issue, as well as many state courts, require the state to prove the necessary facts, including the facts necessary to the second Sell factor, by " clear and convincing" evidence. Dillon, 738 F.3d at 291; Diaz, 630 F.3d at 1331; Fazio, 599 F.3d at 840 n 2; Green, 532 F.3d at 545; Bradley, 417 F.3d at 1114; Gomes, 387 F.3d at 160. See also Seekins, 299 Conn. at 143-44; Cantrell, 143 NM at 612; In re Robert S, 213 Ill.2d 30, 34, 820 N.E.2d 424, 289 Ill.Dec. 648 (2004). We agree that due process requires clear and convincing evidence.
In this case, the trial court's order includes findings that the " [a]dministration of the medication is substantially likely to render [relator] competent to stand trial" and that " [t]he medication to be administered is substantially unlikely to have side effects that will interfere significantly with [relator's] ability to assist counsel in conducting a trial defense." However, the order does not expressly indicate that the court evaluated the evidence presented to determine whether it was clear and convincing. Our review of the record discloses that the trial court " firmly believe[d]" the conclusions that it reached, but that does not tell us that the trial court measured the evidence by the clear and convincing standard that due process requires. Without being able to ascertain that the trial court applied the constitutionally required burden of proof, we conclude that the trial court erred in its application of the second Sell factor. See Bush, 585 F.3d at 816-17 (remanding in part because district court did not appear to have applied clear and convincing standard).
Although we need not further discuss the second Sell factor, we are, as noted, cognizant that the issues raised in this case may arise in the future. Accordingly, we mention concerns that we have about the sufficiency of the evidence in this case. It is uncontested that relator suffers from " delusional disorder, persecutory type," a rare form of psychosis, affecting one to two percent of people with psychiatric illness. In both Ruiz-Gaxiola and Bush, the defendants suffered from that same disorder; both federal circuit courts [355 Or. 101] held that the evidence on which the trial courts had relied for entry of Sell orders was insufficient to permit the orders. Ruiz-Gaxiola, 623 F.3d at 701; Bush, 585 F.3d at 816-17. In both cases, government experts testified that involuntary medication would reduce the defendants' delusional thinking and cited a particular study, the Herbel study, to support their conclusions. Ruiz-Gaxiola, 623 F.3d at 697-98; Bush, 585 F.3d at 812. Both courts pointed out the weaknesses in the testimony and the study and neither considered the evidence to be sufficient to establish that involuntary medication would be likely to restore the defendant's mental competency. Ruiz-Gaxiola, 623 F.3d at 701; Bush, 585 F.3d at 817. Both courts explained that the government must make the required showing with respect to the particular defendant it seeks to medicate and that evidence that antipsychotic medication generally reduces mentally ill patients' delusional thought processes was insufficient to meet the " clear and convincing" standard. Ruiz-Gaxiola, 623 F.3d at 700; Bush, 585 F.3d at 816-17. Accord United States v. Ghane, 392 F.3d 317, 319 (8th Cir 2004) (reversing a Sell order for defendant with delusional disorder, based in part on findings that the illness " resists treatment by * * * antipsychotic medication" ).
Obviously, the sufficiency of the evidence in a particular case depends entirely on the evidence adduced in that case. See Gomes, 387 F.3d at 161-62 (affirming a Sell order for defendant with delusional disorder where the defense did not present expert testimony and both government experts opined that involuntary medication was substantially likely to restore competency). We do not mean to imply that the state cannot establish, by clear and convincing evidence, that the involuntary
administration of antipsychotic medication likely will render a person diagnosed with delusional disorder, persecutory type, competent to aid and assist. However, the evidence that was adduced in this case gives us pause.
In this case, the psychiatrist who testified recommended the involuntary administration of specified medications. He acknowledged that the likelihood of success [355 Or. 102] as a result of that treatment could be as low as 30 to 40 percent, but nevertheless stated his opinion that the medications were " worth trying." In explaining the basis for that opinion, the psychiatrist referred to an article describing a study that, to the best of his recollection, had a sample size of 20 to 30 inmates  and to his own experience with the involuntary medication of one patient with a " similar" diagnosis. The psychiatrist also testified that certain medications had known side effects that could affect a patient's ability to communicate, but did not state an opinion as to whether the medications that would be administered to relator would be substantially unlikely to interfere with his ability to assist his counsel in preparing a defense.
The due process clause does not condition a Sell order on a psychiatric guarantee of success, and we take no position on whether the evidence adduced in this case was sufficient to support a Sell order. We do caution, however, that there may be a cognizable difference between medication that is sufficiently effective to be medically appropriate, and therefore a reasonable choice that is " worth trying" and medication that meets the Sell standard. The latter requires that that particular medication be both " substantially likely" to achieve a particular result (a defendant's competency to stand trial) and " substantially unlikely" to cause a particular consequence (side effects that will impair the fairness of the trial). Sell, 539 U.S. at 181. When medication is medically appropriate, it often will meet those requirements. However, a trial judge must expressly find the necessary facts to support that determination by clear and convincing evidence.
Like the second Sell factor, the third and fourth Sell factors -- that there is no less intrusive means for administering the medication, and that administration of the medication would be medically appropriate -- also require factual determinations supported by clear and convincing evidence. See Ruiz-Gaxiola, 623 F.3d at 701, 703; Bradley, 417 F.3d at 1114; United States v. Payne, 539 F.3d 505, 508-09 (2008) (so concluding). In this case, the trial court's order [355 Or. 103] reaches those factual conclusions, but neither the order nor the record establish that the trial court evaluated the relevant evidence to determine if it was clear and convincing. Therefore, on this record, we conclude that the trial court also erred with regard to the third and fourth Sell factors.
In sum, we conclude that the trial court's order does not meet the four Sell requirements and that the trial court therefore erred in entering it. We grant relator's petition and direct the trial court to vacate the Sell order.
A peremptory writ of mandamus shall issue.