In United States v. Boima, the Second Circuit (Livingston, Sullivan, and Menashi) (per curiam) reiterated that a district court must consider and make findings as to all four factors articulated in Sell v. United States, 539 U.S. 166 (2003) before ordering the Bureau of Prisons to forcibly medicate a defendant to restore his competency to stand trial.  Because the district court’s order failed to include a finding as to whether the government has an important interest in the defendant’s prosecution—the first Sell factor—before ordering his forcible medication, the Second Circuit vacated the district court’s order and remanded for the district court to conduct the required analysis on whether the defendant could be forcibly medicated in order to competently stand trial. 

The case raises significant issues at the intersection of criminal law and civil rights, and reaffirms the importance of only forcing medication on defendants when the Supreme Court’s test is fully satisfied.  Forcing people to take mind-altering medication—even when the medication is needed to treat mental illness—is a serious step for the government to take against an individual.  As this case demonstrates, it is not a step to be lightly taken.

Background

Samuel Boima, a citizen of Sierra Leone, was charged by the government with assaulting two officers at the Buffalo Federal Detention Facility pending deportation pursuant to a final order of removal.  On May 25, 2020, Boima allegedly spat a mixture of saliva and blood on one officer’s uniform and on another officer’s uniform and bare neck when the officers responded to an altercation between Boima and another detainee.  Boima was charged under 18 U.S.C. § 111(a)(1) with assault on federal officers engaged in the performance of official duties, which carries a statutory maximum sentence of eight years’ imprisonment.

During Boima’s initial appearance—held by video on August 10, 2020 after three prior conferences were cancelled because Boima refused to be brought to court—Boima ranted about false imprisonment and stated that his counsel did not represent him.  The magistrate judge overseeing the initial appearance ordered a psychological examination pursuant to 18 U.S.C. § 4241(a) to evaluate Boima’s competency to stand trial.  Boima then underwent an evaluation by a forensic psychologist, who noted in her report that he was “often illogical and highly agitated.”  The forensic psychologist also testified at a competency hearing held on June 2, 2021 that Boima presented as “psychotic with paranoid features,” and that he appeared to be “actively psychotic” with “unspecified schizophrenia spectrum and other psychiatric disorder,” believing that he “had been kidnapped.”  She also could not rule out that Boima suffered from post-traumatic stress disorder (“PTSD”).  Based on the forensic psychologist’s testimony, the district court found on July 2021 that Boima was incompetent to stand trial and ordered him to be hospitalized for an assessment of whether he might attain the capacity to stand trial.  Boima was hospitalized in December 2021.

Nearly a year later, Boima underwent a second evaluation in March 2022.  The second forensic psychologist diagnosed Boima with schizophrenia and opined that he remained incompetent to stand trial, but also opined that “a substantial probability exist[ed]” that psychotropic medication would restore his competency.  The doctor noted that Boima would not take the medication voluntarily.  After receiving the report, the district court asked the Assistant United States Attorney in a May 2022 letter to consider withdrawing the complaint against Boima, noting that the allegations were “unsettling, but no serious injuries occurred and such acts from an inmate who now has demonstrated mental health issues may not be all that uncommon in a prison setting,” noting that the charges against Boima had been pending for almost two years, and stating that the government’s interest in continuing the prosecution was “quite low.”  But the government declined to do so, and instead moved for a Sell hearing to determine whether Boima could be involuntarily medicated.

During the Sell hearing, two forensic physicians (one of whom was the same one who had evaluated Boima in March 2022) diagnosed Boima with schizophrenia and testified that he required medication to be restored to competency.  One calculated that treatment might take about five and a half months, while the other estimated the treatment timeframe as four to eight months.  On January 19, 2023, the district court issued its decision granting the government’s motion to administer antipsychotic medication to Boima to restore him to competency, and to do so forcibly if he refused.  After the district court denied a stay motion, the Second Circuit stayed the Sell order during the pendency of this appeal.

The Opinion

            On appeal, the Second Circuit held that the district court did not make the required finding as to Sell’s first factor and therefore vacated the district court’s order.  It also offered “guidance” to the district court regarding the framework it should apply on remand when evaluating this first factor.

In Sell, the Supreme Court held “that the Government may involuntarily medicate a mentally ill defendant to render him competent for trial if: [i] there are important governmental interests in trying the individual; [ii] the treatment will significantly further those interests; [iii] the treatment is necessary to further those interests, considering any less intrusive alternatives; and [iv] the treatment is medically appropriate.”  United States v. Gomes, 387 F.3d 157, 159-60 (2d Cir. 2004).  A court “must find” that the government established each of the four factors satisfied by clear and convincing evidence for the court to be able to order forcible medication of an individual to restore his competency to stand trial.  Id. at 160, 180-81.

Here, the district court “omit[ted] any discussion” of the first factor.  As the Court explained, the decision “says nothing at all about the governmental interest supporting involuntary medication,” even though the district court earlier suggested that this interest was “quite low.”  Absent a finding that there are “important governmental interests” at stake in trying the defendant, there can be no involuntary treatment.  Sell, 539 U.S. at 180 (emphasis in original).  This failure by the district court led to an almost automatic reversal.

In offering guidance to the district court on remand, the Second Circuit made a few observations about what considerations impact the analysis as to whether there are “important governmental interests” in trying a defendant.  First, the district court should consider whether the offense is “serious.”  Sell, 539 U.S. at 180.  In making that determination, the court can consider the penalty associated with a conviction (including by considering a potential Sentencing Guidelines range, provided such a range can be assessed to some reasonable degree of reliability) and the nature or effect of the allegations against the defendant.  The Second Circuit noted that the “seriousness” of Boima’s crime is suggested both by the fact that his charge carries a possible eight-year prison sentence (as well as a Guidelines range of 51 to 63 months) and by the fact that the charge implicates the important governmental interest in the basic need for security.

Second, the district court may consider the individual facts of the case as they relate to the factors set forth in 18 U.S.C. § 3553(a), including the “nature or effect of the underlying conduct.”  United States v. Valenzuela-Puentes, 479 F.3d 1220, 1226 (10th Cir. 2007).  The Second Circuit stated that although the district court observed that “no serious injuries occurred” as a result of Boima’s actions, it could be argued that Boima’s conduct posed a risk of disease transmission and a threat to authority in the detention facility.

Finally, the district court should consider any “[s]pecial circumstances” that “may lessen the importance” of the governmental interest in bringing a defendant to trial, including the likelihood of civil confinement as an alternative to prosecution and the long delay in bringing someone to trial.  Sell, 539 U.S. at 180.  Thus, the Second Circuit directed that, on remand, the district court should assess the likelihood that Boima may be civilly committed and whether he will remain in custody pending deportation in the event that he is not forcibly medicated and brought to trial.  Both may affect the government’s interest by diminishing the risks that are usually associated with forgoing the prosecution of someone charged with an offense. 

As part of this analysis, the Second Circuit also stated that the district court should consider the substantial period (4 years) that has passed since Boima was first charged in evaluating the government’s interest in continuing the prosecution, since pretrial confinement may mitigate the interest where a “defendant has already been confined for a significant amount of time (for which he would receive credit toward any sentence ultimately imposed).”  Sell, 539 U.S. at 180.

After laying out these factors, the Second Circuit ended the opinion by noting that it took “no position” on the resolution of the questions at the present stage as they related to Boima.

Commentary

In this per curiam opinion, the Second Circuit reaffirmed the necessity of district courts making explicit findings in their orders as to each individual Sell factor before ordering that a defendant may be forcibly medicated in order to restore competence to stand trial for criminal charges.  In expounding upon the types of things courts should consider when evaluating the first Sell factor in particular, the Second Circuit pointed to concrete pieces of evidence, such as the statutory maximum, mandatory minimum, and likely Guideline ranges faced by the defendant, that should help guide district courts in making their findings.  As forcibly medicating a criminal defendant who was already determined to be incompetent to stand trial for the purpose of making it possible for the prosecution to proceed is one of the most intrusive steps the government can take, it is important for the Second Circuit to enforce the Sell standard and to provide district courts with as much guidance as possible in making these determinations.    

It is interesting to note that the district court did in fact comment on whether the government had an important interest in Boima’s prosecution in its May 2022 letter to the government asking whether the government would withdraw the complaint; it stated that “no serious injuries occurred” and that the charges had been pending for almost two years, and thus that the government’s interest in continuing the prosecution was “quite low.”  Yet the district court did not undertake the same analysis in its order approving the forcible medication of Boima.  And the Second Circuit, while explicitly not making any findings as to the strength of the government’s interest in Boima’s prosecution, did appear to at least implicitly push back on one of the district court’s points in the May 2022 letter, noting that although no serious injuries occurred, Boima’s conduct could have increased the risk of disease transmission and could be viewed as a threat to authority.  The Second Circuit also implicitly addressed Boima’s argument on appeal that a Guidelines range of 51 to 63 months’ imprisonment does not demonstrate a “serious” offense by citing to a Ninth Circuit case that held that a crime with a Guidelines range of 33 to 41 months was serious.  District courts may therefore read this opinion as the Second Circuit suggesting that it is possible that the government does have an important interest in this particular case, even as the Court explicitly disclaimed any intent to do so.  At any rate, the district court will need to do this analysis before deciding whether to take the serious step of forced medication.