Forced Medication Requries Clear and Convincing Evidence

US v. Bush: Barbara Bush (no, not that one) was charged with two counts of threatening a federal judge. She suffers from "Delusional Disorder, Persecutory Type," which manifests itself in "extreme litigiousness" - she filed more than 100 civil suits since 1995, one of which exploded into this case. As part of that litigation, she wrote a letter to several federal judges whom she believed had wronged her, outlining a theory of self defense (taken from a 1907 treatise) that she concluded would allow her to "slay any of such persons or all of them" (or attempt to "if she misses") who might do her continued harm. A second letter followed shortly thereafter.

After being arrested on the threat charges, Bush was sent to FMC Carswell for an evaluation where she was diagnosed. The evaluation concluded that Bush was incompetent to stand trial but that medication could restore her competency. Bush refused to take the medication, so the Government moved for an order to forcibly medicate her. At one of several hearings, Bush's personal physician agreed with the diagnosis from FMC Carswell, but disagreed that medication would help. One of the FMC Carswell docs testified that despite the "common wisdom" that conditions like Bush's would not respond to medication, he disagreed, partly based a fresh study (done after Bush's evaluation) from FMC Butner. The district court ordered Bush medicated, applying the analysis from Sell v. US.

Bush sought an interlocutory appeal and the district court's order was stayed. On appeal, the Fourth Circuit unanimously reversed the district court and remanded for further proceedings. First, the court held that in order to obtain an order to forcibly medicate a defendant the Government must satisfy all four prongs of the Sell analysis by clear and convincing evidence, rather than a mere preponderance. Applying that standard of proof, the court found the record lacking on the second Sell prong - whether medication will "significantly further" the government's interest in prosecution - and remanded to the district court for further proceedings on that issue. The court also remanded because the district court failed to address whether forced medication was medically appropriate and would serve Bush's best medical interests.