GALE WATSON, PETITIONER V. UNITED STATES OF AMERICA No. 89-7153 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1-37) is reported at 893 F.2d 970. The opinion of the district court (Pet. App. 38-39) and the report and recommendation of the magistrate (Pet. App. 41-42) are unreported. JURISDICTION The judgment of the court of appeals was entered on January 11, 1990. The petition for a writ of certiorari was filed on April 9, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court's finding that petitioner suffers from a mental disease or defect is clearly erroneous. 2. Whether the involuntary administration of medication to petitioner in order to treat his mental illness violates due process. STATEMENT The government brought this action in March 1988 by filing a petition under 18 U.S.C. 4245(a) in the United States District Court for the Western District of Missouri, seeking a court order authorizing the government to hospitalize and treat petitioner, a federal prisoner, for mental illness. The district court granted the petition, and the court of appeals affirmed. 1. Section 4245 of Title 18 authorizes the involuntary hospitalization and treatment of a federal prisoner who suffers from a mental disease or defect. Section 4245(a) states that, if the inmate objects to the proposed hospitalization and treatment, the government may file a petition in the federal district court in which the medical facility is located for a hearing on the prisoner's present mental condition. The court must grant the petition if there is reasonable cause to believe that the inmate suffers from a mental disease or defect. Ibid. Section 4245 also sets forth procedures to be observed in connection with the hearing. Before the hearing is conducted, the court may order a psychiatric evaluation of the prisoner, which requires a psychiatrist to prepare a report stating the examiner's findings and diagnosis. The examiner must also state whether the prisoner is suffering from a mental disease or defect requiring treatment at a suitable facility. 18 U.S.C. 4245(b), 4247(c). At the hearing, the inmate is entitled to be represented by counsel, to testify, to present evidence, to subpoena witnesses, and to cross-examine and confront witnesses. 18 U.S.C. 4245(c), 4247(d). If, at the conclusion of the hearing, the district court finds by a preponderance of the evidence that the inmate suffers from a mental disease or defect for which he needs treatment, the court must commit the inmate to the custody of the Attorney General for treatment at a suitable hospital facility until the prisoner no longer needs treatment or his sentence expires. 18 U.S.C. 4245(d). 2. Petitioner is serving a 20-year sentence for a 1980 armed robbery conviction. He has a fifth grade education and a long history of psychiatric problems. At age 13, petitioner was hospitalized for heroin addiction and schizophrenia. As a teenager, he went from one institution to another. He was arrested twice for burglary and twice for armed robbery, and he has been intermittently imprisoned since 1974. During petitioner's 1980 prosecution for armed robbery, his attorney sought to convince petitioner to plead guilty by reason of insanity, but petitioner refused to do so. Petitioner was subsequently found competent to stand trial, and he was convicted. Pet. App. 8. In prison, petitioner was charged with assault on three occasions, and he has had several incident reports filed against him. In 1982, he received a stab wound following an altercation with members of a prison religious group. Thereafter, petitioner was placed in segregated confinement, where he was locked in a cell 23 hours a day. Since then, petitioner has refused to enter the general prison population, fearing further attacks. He has also refused to cooperate with prison officials, because he believes that he was wrongly convicted and imprisoned. Pet. App. 8. In 1981, the psychiatric staff at the Medical Center for Federal Prisoners in Springfield, Missouri, diagnosed petitioner as suffering from a schizoaffective disorder and an antisocial personality. Petitioner was treated with Navane, an antipsychotic drug, with good results. In 1983, petitioner was readmitted to the Springfield facility and underwent the same drug therapy. Pet. App. 9. In 1984, Dr. Clayton Pettipiece, a staff psychiatrist at the Springfield facility, examined petitioner and concluded that he suffers from an antisocial personality and manic depression, a mental disease that requires treatment at a psychiatric hospital. Dr. Pettipiece recommended that petitioner be treated with lithium, an antimania drug. /1/ After petitioner refused to consent to hospitalization, the government brought this action seeking an order directing that he be hospitalized. Pet. App. 9, 15, 48-49. At the request of petitioner's court-appointed counsel, petitioner was examined by Dr. Kenneth Burstin, a clinical psychologist. Dr. Burstin agreed with Dr. Pettipiece that petitioner suffers from an antisocial personality, but he found no evidence of a mental disease or defect. Pet. App. 9. 3. The magistrate to whom the case was assigned held a hearing on the matter. Dr. Burstin testified that he based his opinion on one personal interview of petitioner lasting about one hour and 15 minutes in March 1988 and on his review of petitioner's medical records. Petitioner was cooperative during the personal interview, but he declined to take any psychological tests. Dr. Burstin explained that a patient suffering from the disease described by Dr. Pettipiece would normally exhibit symptoms of that disease, but Dr. Burstin said that he did not observe any such symptoms during the interview. Dr. Burstin admitted, however, that because petitioner had a history of mental disorders, he could not entirely rule out Dr. Pettipiece's diagnosis. Gov't C.A. Br. 2-3. Dr. Pettipiece testified that his conclusion that petitioner suffered from manic depression was based on four evaluations of petitioner between February and April 1988. He explained that petitioner has been suffering from bipolar disorder and manic depression since his childhood, and that petitioner may have inherited the disease from his mother, who served four years in prison for a homicide. Disagreeing with Dr. Burstin, Dr. Pettipiece testified that manic depression is not a constant illness, but rather is characterized by mood swings or episodes. Petitioner had exhibited symptoms of manic depression during his two periods of hospitalization at the Springfield Medical Center. Petitioner's fight with members of the prison religious group was similar to such an episode. Dr. Pettipiece testified that petitioner was confined to his cell due to his mental illness, not misconduct, and that treatment with lithium would enable petitioner to be returned to the general prison population, because it would keep him from exhibiting irrational behavior. Gov't C.A. Br. 3-4. The magistrate found by a preponderance of the evidence that "(petitioner) is suffering from a mental disease or defect for the treatment of which he is in need of custody for care or treatment in a suitable facility." Pet. App. 41. The magistrate rejected Dr. Burstin's contrary opinion on the ground that the value of Dr. Burstin's opinion was limited by petitioner's refusal to complete psychological testing, and because Dr. Burstin's opinion was "not as consistent with (petitioner's) psychiatric history as is the opinion of Dr. Pettipiece. Further, (petitioner's) testimony did not credibly contradict Dr. Pettipiece's testimony." Pet. App. 41-42. 4. After the magistrate filed his report, the district court obtained an updated report of petitioner's psychiatric condition and a response. After reviewing the record, the district court, like the magistrate, concluded that petitioner needed hospitalization because he suffered from a mental disease or defect. The court also concluded that the use of medication was part of "the medically accepted treatment for (petitioner's) illness and that treatment with medication has been successful." The court ordered that petitioner be hospitalized until he was no longer in need of care and treatment. Pet. App. 38-39. 5. The court of appeals affirmed. Pet. App. 1-37. /2/ The court upheld the district court's finding that petitioner suffers from a mental disease or defect. The court observed that petitioner has a history of mental problems and that he exhibited symptoms of mental illness, including hypomania, pressured speech, impaired judgment, and delusional thinking, when he was examined by Dr. Pettipiece. The court held that in light of petitioner's medical history and Dr. Burstin's limited exposure to petitioner, the magistrate did not err in giving greater weight to Dr. Pettipiece's testimony. Pet. App. 11. The court of appeals also upheld the district court's order requiring petitioner to be treated with lithium. Relying on Mills v. Rogers, 457 U.S. 291 (1982), and Youngblood v. Romeo, 457 U.S. 307 (1982), the court assumed that a prisoner has a liberty interest in refusing treatment with antipsychotic medication, but that that liberty interest can be circumscribed by legitimate security needs. Pet. App. 12-20. The court held that prison officials can constitutionally medicate a prisoner with antipsychotic drugs whenever, "in the exercise of professional judgment, such an action is deemed necessary to remove that prisoner from seclusion and to prevent the prisoner from endangering himself or others." Id. at 25. After that decision is made, professional judgment also must be exercised in the resulting decision to administer medication." Ibid. The government met that standard in this case, the court concluded, because the evidence showed that (1) petitioner "has had problems functioning in the prison environment"; (2) petitioner has "acted impulsively and irrationally both in and out of prison, leading to injury to himself and others"; and (3) petitioner "cannot function in the general prison population." Id. at 24-25. Finally, the court rejected petitioner's argument that he has a right to be placed in administrative confinement instead of being treated with antipsychotic medication. "If the government shows that it cannot control a mentally ill prisoner in the general prison population," the court stated, "due process does not require it to provide the least restrictive treatment modality." Id. at 25. ARGUMENT 1. Petitioner contends that the courts below erred in concluding that he suffers from a mental disease or defect that requires hospitalization and treatment under 18 U.S.C. 4245. Pet. 6-10. Whether a person suffers from a mental disease or defect is a question of fact, and therefore is subject to review under the clearly erroneous standard. See Maggio v. Fulford, 462 U.S. 111 (1983) (whether the defendant is competent to stand trial is a question of fact under 28 U.S.C. 2254(d)). The district court (like the magistrate) found that petitioner is mentally ill, and the court of appeals upheld that finding. The concurrent findings of both courts do not warrant further review. See, e.g., Goodman v. Lukens Steel Co., 482 U.S. 656, 665 (1987). In any event, the district court correctly found that petitioner suffers from a mental disease or defect. Dr. Pettipiece's diagnosis was that petitioner suffers from manic depression. His opinion was based on extensive examinations of petitioner as well as petitioner's history of mental problems. Dr. Pettipiece's testimony is sufficient to support the district court's finding that petitioner is mentally ill. The courts below also properly rejected petitioner's contrary evidence. Petitioner's witness observed petitioner only once; petitioner refused to take any psychological tests on that occasion; and petitioner's witness did not directly contradict Dr. Pettipiece's diagnosis. The district court was therefore entitled to reject the opinion of petitioner's expert in favor of the opinion of Dr. Pettipiece. 2. Petitioner also contends that the decision to medicate him against his will violated due process, because 18 U.S.C. 4245 lacks adequate procedural safeguards regarding the decision to treat a prisoner with antipsychotic medication involuntarily. Pet. 10-15. /3/ In Washington v. Harper, 110 S. Ct. 1028 (1990), this Court held that the government can use antipsychotic medication against an inmate's will if (1) the inmate has a serious mental illness; (2) he is dangerous to himself or others, or is gravely disabled; and (3) such treatment, in the judgment of qualified medical professionals, is in the inmate's best interests. Id. at 1039-1040. This Court also upheld the state procedure governing the administration of antipsychotic medication, which granted the authority to make treatment decisions to qualified medical professionals, subject to administrative and judicial review. Under that procedure, if an inmate objected to treatment, a committee, consisting of two medical professionals and a prison official, conducted an administrative hearing in order to decide whether the inmate was mentally ill and was dangerous to himself or others, or was gravely disabled, and whether the prisoner should be treated with antipsychotic medication. The prisoner was entitled to notice of the hearing, as well as the right to be present, to have a non-lawyer assistant, to present evidence, and to cross-examine adverse witnesses. The committee decision was subject to review by the head of the prison facility and to judicial review in state court. Id. at 1033-1034. This Court held that the Washington state procedures adequately protected a prisoner's due process rights. In particular, the Court rejected claims that due process requires a judicial decisionmaker and the right to an attorney at the hearing. 110 S. Ct. at 1040-1043, 1044. The Court also rejected the argument that the prison medical staff lacks the independence to conduct a full and fair administrative hearing. Id. at 1043-1044. Finally, the Court rejected the argument that the decision to treat a prisoner with antipsychotic medication must satisfy the "clear and convincing" standard of proof. Id. at 1044. The decision to treat petitioner against his will satisfied all of the requirements of the Harper decision. First, officials at the Springfield Medical Center decided to medicate petitioner involuntarily only after concluding that he was both mentally ill and dangerous, and that medication was both medically appropriate and in his best interests. Pet. App. 24. Second, petitioner was examined by a psychiatrist at the Springfield facility, and he also was examined by a mental health professional of his own choosing after the Springfield officials decided to medicate him. Petitioner received a judicial hearing on the questions whether he was mentally ill and in need of treatment. Both the magistrate and the district court found that petitioner was mentally ill and in need of treatment, and that finding was reviewed and sustained by the court of appeals. Finally, petitioner has been represented by counsel throughout the judicial proceedings in this case. In short, petitioner received all of the process -- and more -- that Washington inmates received under the procedure this Court upheld in Harper. /4/ The decision below is consistent with the Fourth Circuit's decision in United States v. Charters, 863 F.2d 302 (1988) (en banc), cert. denied, 110 S. Ct. 1317 (1990), which involved the question whether the government may involuntarily administer antipsychotic medication to a mentally ill defendant found incompetent to stand trial. Charters held that due process permits the use of antipsychotic medication under those circumstances as long as qualified medical professionals, exercising their professional judgment, conclude that such treatment is appropriate. In light of the fact that petitioner received a judicial hearing on the issue of his hospitalization and treatment and was represented by counsel throughout the proceedings, petitioner received at least as much procedural protection as he would have enjoyed under the Fourth Circuit's decision in the Charters case. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General THOMAS E. BOOTH Attorney JUNE 1990 /1/ When administered, an antimania drug can cause some adverse side effects, such as tremors, abdominal cramps, nausea, vomiting, diarrhea, unusual thirst, polyuria, and fatigue. Antimania drugs can damage the central nervous system if administered in excessive doses. But antimania drugs are not antipsychotic drugs and do not generally cause the potentially severe side effects that are associated with antipsychotic drugs. Pet. App. 15-17. /2/ The opinion in this case resolved two separate appeals: petitioner's appeal (No. 88-2578) and an appeal taken by another prisoner from a different district court judgment (No. 89-1033). By an order entered on January 13, 1989, Pet. App. 40, the Eighth Circuit ordered that oral argument in both cases be heard together, and after argument the Eighth Circuit issued one opinion disposing of both appeals. On April 20, 1989, the Eighth Circuit entered an order granting the government suggestion for rehearing en banc in No. 89-1033 and vacating the opinion and judgment in that case. The Eighth Circuit's action in No. 89-1033 has no effect on this case. /3/ The government brought this action in order to treat petitioner with lithium, which is not an antipsychotic medication. Nonetheless, the district court's order generally commits petitioner "to the custody of the Attorney General for hospital care and treatment," Pet. App. 39, as 18 U.S.C. 4245 provides. Section 4245 (and the district court's order) authorizes the government to treat petitioner with antipsychotic medication if doing so is deemed medically necessary for his treatment. Accordingly, we will address petitioner's claim as being addressed to the use of antipsychotic medication. /4/ After the decision below and this Court's decisions in Harper and Zinermon v. Burch, 110 S. Ct. 975 (1990), the Springfield Medical Center revised its internal procedures governing the voluntary and involuntary administration of antipsychotic medication. The current involuntary medication procedure is not materially different from the procedure upheld in Harper.