ORDER
This matter originally came before the Court, pursuant to Title 18,United States Code, Section 4241, on a motion to determine competency ofDefendant Jason M. Dumeny. On July 30, 2003, the Court held a competencyhearing and found by a preponderance of the evidence that the Defendantis presently suffering from a mental disease or defect rendering himmentally incompetent to the extent that he is unable to assist properlyin his defense. Pursuant to the Court's Order dated July 30, 2003, theUnited States Department of Justice, Federal Bureau of Prisons, conductedan examination of the Defendant pursuant to Title 18, United States Code,sections 4241(d) & (e), to determine whether there is a substantialprobability that in the foreseeable future the Defendant will attain thecapacity to permit the trial to proceed.
On December 12, 2003, the Court received a request from A.F. Beeler,Warden, Federal Medical Center, Burner, North Carolina, to involuntarilytreat the Defendant with psychotropic medications for a four (4) monthperiod in order to restore his competency to proceed to trial. In supportof the request was a seventeen (17) page Forensic Evaluation Reportprepared by Jill R. Grant, Psy.D., and Bruce Berger, M.D., of the FederalBureau of Prisons, Federal Medical Center, Burner, North Carolina, whichrecommended treatment with mood stabilizing and/or antipsychoticmedications. In the absence of involuntary treatment, it was recommendedthat thePage 2Defendant be returned to Court for further disposition as appropriate,since in the opinion of the evaluators, continued hospitalization withoutmedication would be of no further benefit.
On December 18, 2003, the Court held a conference of counsel and havingreviewed the Beeler request and supporting report and the record in thiscase, finds insufficient important governmental interests as set forth inSell v. United States, 123 S.Ct. 2174, to warrant an order toinvoluntarily treat the Defendant with psychotropic medications in orderto restore his competency to proceed to trial. Under Sell, the court mustconsider four factors before ordering the involuntary treatment of aDefendant: (1) the court must find that "important governmental interestsare at stake"; (2) the court must conclude that "involuntary medicationwill significantly further those concomitant state interests"; (3) thecourt must conclude that "involuntary medication is necessary to furtherthose interests"; and, (4) the court must conclude that "administrationof the drugs is medically appropriate." Sell, 123 S.Ct. at 2184 (emphasisin the original).
The Sell court explained the analytic process under the firstcriterion. The court must consider "the facts of the individual case inevaluating the Government's interest in prosecution." Id. Mr. Dumeny iscurrently charged under 18 U.S.C. § 922(g)(4) with possession offirearms by a person previously committed to a mental health institute.Without diminishing the potential seriousness of this charge, whichcarries significant potential penalties, see 18 U.S.C. § 924(a)(2),it is noteworthy that Mr. Dumeny has been charged with possession only.He has not been charged with improper use of the firearms. Although theForensic Evaluation Report makes reference to Mr. Dumeny's violentproclivities, the only criminal charge before the court at this time isthe possession charge. This court concludes in view of the pendingcharge, the government interest at stake is insufficient for this courtto mandate intrusive involuntary treatment of Mr. Dumeny.1Page 3
This Order should not be construed as implying any disapproval of thefindings and recommendations in the Forensic Evaluation Report. To thecontrary, Drs. Grant and Berger have performed a thorough and detailedevaluation and their treatment recommendations are thoughtful andprofessional. If Mr. Dumeny were to agree to the recommended treatment,Drs. Grant and Berger are optimistic that the course of drug therapywould result in a substantial amelioration of Mr. Dumeny's psychologicalsymptoms with manageable side effects. The issue before the court is notwhether Mr. Dumeny should voluntarily accept treatment, but whether thecourt should order him to do so against his will.
IT IS ORDERED THAT:
Pursuant to Title 18, United States Code, section 4241(d), the requestto involuntarily treat the Defendant with psychotropic medications inorder to restore his competency to proceed to trial is DENIED.
Pursuant to Title 18, United States Code, Section 4246(a), the Courtfurther orders an examination and report as to whether the Defendant ispresently suffering from a mental disease or defect as a result of whichhis release would create a substantial risk of bodily injury to anotherperson or serious damage to property of another.
Upon completion of the above examination and report, the Defendantshall be returned to the District of Maine for a hearing pursuant toTitle 18, United States Code, Section 4246.
A copy of this Order shall be given to the United States Marshal andthe Marshal shall make arrangements as are necessary for the furtherexamination and hospitalization of the Defendant, and return to theDistrict of Maine as required by this Order.Page 4
Upon Defendant's return to the District of Maine, the U.S. Marshalshall immediately notify the Court of that fact.
The period of commitment from the date of this order shall be excludedin computing the time within which the trial of any such offense mustcommence, pursuant to Title 18, United States Code, Section3161(h)(1)(A).
1. Furthermore, the recommended treatment protocol would require theinitial administration of "an injectable antipsychotic medication". UnderSell, the court must consider alternative, less intrusive methods oftreatment (non-drug therapy) before ordering the involuntaryadministration of medicatioa It is a logical extension of Sell to applythe same rationale to the involuntary injection of medication. Based onthe record before it, the court could not conclude that an alternative,less intrusive method of treatment, namely a regime of oral medication,has been exhausted and would be unlikely to restore the Defendant tocompetence.Page 1