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JON M. SANDS

Federal Public Defender

JAMES D. SMITH

Assistant Federal Public Defender

State Bar No. 024194

407 W. Congress St., Suite 501

Tucson, AZ 85701

Telephone: (520) 879-7500

james_d_smith@fd.org

Attorney for Defendant

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

UNITED STATES OF AMERICA,

Plaintiff,

 vs.

SONIA QUINTERO,

 Defendant.

No. CR 17-1895-TUC-JAS (BPV)

OBJECTION TO CONFINEMENT 

PURSUANT TO 18 U.S.C. §4241

Ms. Sonia Quintero objects to being confined for restoration proceedings. A 

hearing to determine restoration is set before the Court on February 28, 2019. Ms. 

Quintero has been released and compliant with the pretrial release conditions set by the 

Court, and she has been present at all hearings ordered by the Court; as such, she submits 

that she is not a danger to the community or a flight risk.

There are options for outpatient restoration available, and she asks that the Court 

allow her to participate in an outpatient program should the Court find that she is 

restorable. However, the Court has indicated that it is disinclined to allow Ms. Quintero 

to participate in an outpatient restoration program; as such, she submits the following in 

support of her objection. 
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I. The language of 18 U.S.C. § 4241(d) does not mandate inpatient 

confinement for competency restoration. 

A. Relevant Statutory Language

Under 18 U.S.C, § 4241(d), if the court finds by a preponderance of evidence that 

the defendant is incompetent to stand trial, “the court shall commit the defendant to the 

custody of the Attorney General,” and “[t]he Attorney General shall hospitalize the 

defendant for treatment in a suitable facility” for a reasonable period of time, not to 

exceed four months, as is necessary to determine whether there is a substantial 

probability in the foreseeable future that he will attain the mental capacity to proceed.

“Suitable facility” means “a facility that is suitable to provide care or treatment 

given the nature of the offense and the characteristics of the defendant.” § 4247(a)(2). 

The Attorney General “may contract with a State, a political subdivision, a locality, or a 

private agency for the confinement, hospitalization, care, or treatment of, or the provision 

of services to, a person committed to his custody,” and “shall, before placing a person in 

a facility pursuant to the provisions of section 4241 . . . consider the suitability of the

facility’s rehabilitation programs in meeting the needs of the person.” § 4247(i)(A) & 

(C). 

The federal government broadly defines “hospitalization.” For example, in the 

Medicare context, (42 U.S.C. § 1395, et. seq.), hospitalization includes both “inpatient 

hospital services” (§ 1395x(b)) and “partial hospitalization services.” § 1395x(ff). Partial 

hospitalization services encompass services consistent with outpatient, community-based 

competency restoration, including “individual and group therapy with physicians or 

psychologists . . . services of social workers, trained psychiatric nurses, and other staff 
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trained to work with psychiatric patients . . . (and) patient training and education.” 

“Hospital services” includes services “rendered to outpatients and partial hospitalization 

services incident to such services.” § 1395x(s)(2)(B). 

Moreover “custody” can include release in the community under supervision. For 

example, a person is in “custody” for the purpose of 28 U.S.C. § 2255 while on 

supervised release. United States v. Reves, 774 F.3d 562, 565 (9th Cir. 2014) (citing 

Maleng v. Cook, 490 U.S. 488, 490-91 (1989)). See also 28 C.F.R. § 551.105; Bureau of 

Prisons (BOP) Program Statement P5100.08, Chapter 1, p. 2 (9/12/2006) (providing that 

custody levels include “community,” “out,” and “in.” (BOP program statements are 

available at https://www.bop.gov/PublicInfo/execute/policysearch?todo=query.)

B. Inpatient confinement for competency restoration, when it is not 

necessary or suitable based on individualized circumstances, violates 

laws protecting individuals with disabilities.

Section 504 of the Rehabilitation Act (“Rehab Act”), 29 U.S.C. § 794(a), provides, 

in relevant part, that no individual with a disability shall, “solely by reason of her or his 

disability . . . be subjected to discrimination . . . under any program or activity conducted 

by any Executive agency.” In this context, disability is defined as “a physical or mental 

impairment that substantially limits one or more major life activities”—including, inter 

alia, learning, reading, concentrating, thinking, communicating, and working—or being 

regarded as having such an impairment. 29 U.S.C. § 705(9)(B); 42 U.S.C. § 12102 (1) & 

(2). See also 42 U.S.C. § 15009(a)(2) (declaration of rights of individuals with 

developmental disabilities).
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Currently, the department of Justice’s (DOJ’s) relevant implementing regulations 

mirror Section 504’s general proscription against discrimination and require that DOJ 

“shall administer programs and activities in the most integrated setting appropriate to the 

needs of qualified handicapped persons.” 28 C.F.R. § 39.130(d).The Section 504 statute 

and integration regulation prohibit undue institutionalization of individuals with 

disabilities and require DOJ to ensure that the agency conducts its programs and 

activities, including competency restoration, in the most integrated setting appropriate for 

the individual defendant with a disability. Section 504’s nondiscrimination mandate 

applies to “any program or activity receiving Federal financial assistance or under any 

program or activity conducted by any Executive agency or by the United States Postal 

Service.” 29 U.S.C. § 794(a)

To comply with Section 504’s integration mandate, federal agencies are required 

to make reasonable modification of their policies, procedures or practices when necessary 

to avoid discrimination. Alexander v. Choate, 469 U.S. 287, 301 (1985) (recognizing that 

“to assure meaningful access [under Section 504], reasonable accommodations in the 

grantee’s program or benefit may have to be made”).

In Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 597 (1999), the Supreme Court 

ruled that, under Title II of the Americans with Disabilities Act (ADA), “[u]njustified 

isolation [] is properly regarded as discrimination based on disability.” See also id. at 607 

(States must provide community-based treatment for persons with mental disabilities 

when appropriate). The Supreme Court’s reasoning in Olmstead applies equally to 

executive agencies under Section 504. See Sanchez v. Johnson, 416 F.3d 1051, 1063 (9th 
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Cir. 2005) (ADA and Section 504 integration mandates would be interpreted as “coextensive”).

Competency restoration services fall within DOJ’s programs and activities, all of 

which are subject to DOJ’s Section 504 implementing regulations. See 28 C.F.R. § 

39.102 (“applies to all programs or activities conducted by the agency”) (emphasis 

added); see also Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 209 (1998) (state prisons 

covered by ADA). Most, if not all, individuals found incompetent to stand trial (“IST”) 

under the procedures of 18 U.S.C. § 4241 will satisfy Section 504’s legal definition of an

individual with a disability because they have a mental impairment that substantially 

limits at least one major life activity.

Mandatory detention to an inpatient institution for every individual found IST 

precludes an individualized assessment of their needs and placement in the most 

integrated setting in which their needs can be met, and therefore violates Section 504’s 

integration mandate. The absence of a continuum of competency restoration services in 

less restrictive settings and the allocation of all resources to institutional placements 

results in unjustified segregation of people with mental disabilities. Detention at a 

medical institution of a prison complex is not in mainstream society; does not offer 

access to community activities and opportunities at times, frequencies and with persons 

of an individual’s choosing; does not afford individuals choice in their daily life 

activities; and, does not provide individuals with disabilities the opportunity to interact 

with non-disabled persons, except for prison staff/medical providers. Confinement in a 

BOP institution severely diminishes the everyday life activities of individuals found IST, 
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including family relations, social contacts, work options, economic independence, and 

continuation of services. And individuals with disabilities are exploited and victimized in 

prison environments at higher rates than other inmates. See American Association on 

Intellectual and Developmental Disabilities, Criminal Justice System (2014), available at 

https://aaidd.org/news-policy/policy/position-statements/criminal-justice (last visited 

2/15/19). Ms. Quintero would be particularly susceptible to abuse as her ability to 

negotiate a complex and foreign social setting has been medically removed. 

Providing competency restoration in the community does not alter the nature of 

competency restoration. In fact, the government benefits from having a continuum of 

competency restoration treatment and services that includes outpatient and communitybased options. In a 2016 study of about 13 outpatient competency restoration programs, 

rates of competency restoration averaged 70% and rates of unrestorability averaged 

20.3%. W. Neil Gowensmith, et. al., Lookin’ for Beds in All the Wrong Places: 

Outpatient Competency Restoration As A Promising Approach to Modern Challenges, 22 

PSYCOL. PUB. POL’Y & L. 293, 299 (2016) (“Gowensmith”). The outpatient programs did 

not report any incidences or arrests for serious violence. Id. Outpatient competency 

restoration services are also less expensive than inpatient services. Id.

C. The policies of the Attorney General (AG) and the Bureau of Prisons 

(BOP) are inconsistent with the statutory language and 

unconstitutional.

As explained above, the relevant statutory language allows for outpatient, 

community-based competency restoration treatment if suitable given the defendant’s 

individualized circumstances. It is nevertheless the policy of Attorney General (AG) and 
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BOP to incarcerate every defendant found incompetent to stand trial under 8 U.S.C. § 

4241(d) in a BOP Federal Medical Center regardless of whether inpatient confinement is 

necessary to achieve the government’s interests or a suitable treatment protocol for the 

particular defendant.

The AG has delegated to BOP the duties imposed upon the Attorney General 

relating to the commitment and treatment of persons under § 4241(d). 28 C.F.R. § 0.96(j). 

A person committed under 18 U.S.C. § 4241(d) for mental evaluation and treatment is 

“considered to be a pretrial inmate.” 28 C.F.R. § 551.101(a)(2). BOP “[s]taff ordinarily 

will supervise a pretrial inmate as if classified ‘In’ custody.” 28 C.F.R. § 551.105(a). But, 

“[w]here circumstances warrant, staff may supervise a pretrial inmate according to 

procedures for other custody levels.” § 551.105(b)(2). See also BOP Program Statement 

P5100.08, Chapter 1, p. 2 (9/12/2006) (providing that custody levels include 

“community,” “out,” and “in.”).

“As used in 18 U.S.C. Chapter, 313” which includes § 4241(d), “‘hospitalization 

in a suitable facility’ includes the BOP’s designation of inmates to medical referral 

centers or correctional institutions that provide the required care or treatment.” 28 C.F.R. 

§ 549.41. Under BOP policy, “those inmates requiring hospitalization by statute 

(§4241(d), §4243(e), §4245, §4246(e)) or clinical condition will be designated to a 

Medical Referral Center.” BOP Program Statement P5070.12, pp. 6-7 (4/16/2008). 

Another policy statement provides that “[i]nvoluntary hospitalization of . . . inmates 

[found incompetent under § 4241(d)] requires a court determination that the person may 

be suffering from a mental disease or defect for the treatment of which he/she needs 
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custody in a suitable facility.” BOP Program Statement P6010.03, p. 5 (7/13/2011). Thus, 

although even BOP seems to recognize that inpatient incarceration for competency 

restoration requires a court finding that such treatment is necessary, current AG and BOP 

policy mandate such incarceration without a showing of necessity.

The AG’s failure to implement 18 U.S.C. § 4241(d) in accordance with the 

statutory language—which requires “suitable” treatment and a showing of necessity to 

justify inpatient confinement—contravenes its constitutional duty to “Take Care that the 

Laws be faithfully executed,” U.S. Const., Art. II. § 3, which violates the separation of 

powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587-89 (1952)

(separation of powers requires executive branch to implement policy in the manner 

prescribed by Congress). Assuming without conceding that any ambiguity exists in the 

statutory scheme, it must be resolved in favor of the defendant under the rule of lenity. 

United States v. Turner, 689 F.3d 1117, 1126 (9th Cir. 2012). The statute can and 

therefore must also be interpreted to avoid grave doubts about its constitutionality, id. at 

1125, and to reconcile its provisions with the laws protecting individuals with disabilities. 

United States v. Gallenardo, 579 F.3d 1076 (9th Cir. 2009). 

Current AG and BOP policy violates disability laws, which, as explained above, 

require competency restoration treatment in the setting least restrictive of individual 

liberty that can achieve the goals of treatment. 

As explained below, current policy also violates substantive due process, equal 

protection, and the Eighth Amendment. At a minimum, automatic confinement for 
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competency restoration—without an individualized determination of the suitability or 

necessity of custodial inpatient treatment—raises serious constitutional concerns.

Moreover, procedural due process requires an adversarial hearing with an 

independent decisionmaker before a defendant released under the Bail Reform Act 

(BRA) can be committed to a custodial, inpatient institution for competency restoration. 

Vitek v. Jones, 445 U.S. 480, 494-95 (1980) (requiring these protections before convicted 

state inmate could be transferred to mental hospital based on prison doctor’s 

determination that he could not be given proper treatment in the prison). These 

procedural protections are grounded both in the statute’s “necessity” and “suitability” 

requirements (§ 4241(d), §§ 4247(a)(2), (i)(A) and (C)) and the in Due Process clause 

itself, which protects against unnecessary confinement in a mental hospital. Vitek, 445 

U.S. at 489-494. Vitek’s holding applies with even greater force here because pretrial 

defendants—released under the BRA—have a stronger liberty interest than convicted 

inmates.

In this competency-restoration context, the district court must make the preconfinement determination regarding the suitability of the AG’s proposed treatment plan. 

Cf. Sell v. United States, 539 U.S. 166, 180-81 (2003). It is the judiciary’s—not an 

agency’s—province to interpret criminal statutes, including application of the rule of 

lenity (Abramski v. United States, 573 U.S. 169, 191 (2014); id. at 203-04 (Scalia, J., 

dissenting)), and to interpret statutes to avoid constitutional concerns. Solid Waste 

Agency v. Corps of Engineers, 531 U.S. 159, 173-74 (2001).
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II. Automatic inpatient confinement for competency restoration violates 

due process.

Freedom from confinement before or without trial is a fundamental right. 

United States v. Salerno, 481 U.S. 739, 750 (1987); Foucha v. Louisiana, 504 U.S. 71, 

80-83 (1992); Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 780-81 (9th Cir. 2014) (en 

banc). “[H]eightened scrutiny” must be applied when evaluating whether a statute or 

policy that “infringe[s] a ‘fundamental’ right” violates “substantive due process.” LopezValenzuela, 770 F.3d at 780. Because pretrial liberty is a fundamental right, substantive 

due process requires “case-by-case determinations of the need for pretrial detention;” the 

government must prove by “clear and convincing evidence” that “no condition of release 

c[ould] reasonably” address the government’s interest in detention. Id. at 784-85. The 

BRA, 18 U.S.C. § 3142, et. seq., satisfies these requirements. Salerno, 481 U.S. 739. 

Title 18 U.S.C. § 4241(d) does not, however, specify that these conditions must be met 

before a defendant found incompetent to stand trial can be incarcerated for competency 

restoration treatment. 

Due process requires that, before a defendant released under the BRA may be 

committed to an institution for inpatient custodial competency restoration, the 

government must prove by clear and convincing evidence that any less restrictive 

alternative is substantially unlikely to achieve the same result. Cf. Sell, 39 U.S. at 179-81

(the government can forcibly medicate defendant facing serious criminal charges in order 

to render that defendant competent to stand trial only if treatment is “medically 

appropriate,” is “substantially likely to render the defendant competent to stand trial,” 

and, “taking account of less intrusive alternatives, is necessary significantly to further 
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important governmental trial-related interests.”). Without such a showing, confinement 

for competency restoration is excessive in relation to the government’s interests; such 

confinement therefore also violates due process because it impermissibly imposes 

punishment without an adjudication of guilt. Lopez-Valenzuela, 770 F.3d at 789-91. 

Defendant acknowledges United States v. Strong, 489 F.3d 1055, 1059 (9th Cir. 

2007), which held that pretrial confinement for competency restoration, without an 

individualized determination of whether such confinement is necessary to achieve the 

government’s interest in competency restoration, does not violate substantive due 

process. But Strong was based on a faulty premise, i.e.., that inpatient confinement is 

always necessary to achieve the government’s interest in competency restoration. Recent 

empirical evidence refutes that premise. Today, a substantial majority of states allow for 

or provide outpatient competency restoration in criminal proceedings, with positive 

results. See p. 6, supra; Gowensmith, at 296-97, 300-01; United States v. Nino, Ninth

Circuit No. 17-10546, Amicus Brief, Arizona Disability Law Center, pp. 17-24 

((DktEntry 14) (ADLC Amicus Brief); Marisol Orihuela, The Unconstitutionality of 

Mandatory Detention During Competency Restoration, 22 BERKELEY J. CRIM. L. 1, 20-

22 (2017) (“Orihuela”).

In Arizona, for example, outpatient competency restoration is commonplace. The 

governing statute requires the court to select the “least restrictive treatment alternative” 

after considering individualized circumstances. Ariz. Rev. Stat. § 13-4512. (Arizona uses 

the federal standard to determine competency to stand trial.) As defense counsel and the 

district court recently agreed in another case in this district, defendants in Arizona state 
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courts routinely participate in outpatient restoration programs. United States v. Nino, 

4:16-cr-01397-TUC-JAS, Document 63 (RT 12/04/17) at pp. 8-10. 

The Strong Court simply did not have the benefit of now-available evidence that 

outpatient competency restoration programs are, in many circumstances, at least as 

effective as in-custody programs and are typically less expensive. See Gowensmith and

ADLC Amicus Brief, supra at pp. 6, 11. As the Georgia Supreme Court recently 

observed in holding that mandatory confinement for competency restoration violates due 

process, confinement may actually impede the government’s purpose of achieving 

competency restoration in some circumstances. Carr v. State, 815 S.E.2d 903, 915 (Ga. 

2018). The stress of being detained, especially at a Bureau of Prisons (BOP) facility far 

from the defendant’s legal counsel and support network, can exacerbate mental health 

issues or make it more difficult for intellectually disabled individuals to learn and gain 

the necessary understanding of the criminal justice system. Moreover, ongoing medical 

staffing shortages hinder BOP’s ability to provide adequate treatment. Office of the 

Inspector General, U.S. Department of Justice, Review of the Federal Bureau of Prisons’ 

Medical Staffing Challenges (March 2016), https://oig.justice.gov/reports/2016/e1602.pdf 

(last visited 10/26/18). Thus, in some cases, outpatient restoration programs are in a 

better position to accurately assess the defendant’s likelihood of attaining competence.

Indeed, under current ABA standards, a defendant may be ordered to undergo 

treatment for competency restoration only if the court finds that there is a substantial 

probability that treatment will restore the defendant to competence in the foreseeable 

future. Criminal Justice Mental Health Standards, std. 7-4.10(a)(ii)(B) (Am. Bar Ass’n 
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2016). Those standards further provide that a “defendant should not be involuntarily 

hospitalized to restore or sustain competence unless the court determines by clear and 

convincing evidence that: (A) treatment appropriate for the defendant to attain or 

maintain competence is available in the facility; and (B) no appropriate treatment 

alternative is available that is less restrictive than placement in the facility.” Id. at std. 7-

4.10(a)(iii)(B). Under these ABA standards, “[a] defendant has a right to treatment in the 

least restrictive setting appropriate to restore competence to proceed.” Id. at std. 7-

4.11(c).

Even if the Court determines that no appropriate treatment alternative is available 

that is less restrictive than placement in an inpatient facility, confinement for competency 

restoration is not permissible unless the government has a compelling interest in 

prosecution. In making this determination in the Sell context, this Court considers 

whether the charged crime is sufficiently serious to indicate an important governmental 

interest. United States v. Onuoha, 820 F.3d 1049, 1054 (9th Cir. 2016). The Court uses 

the anticipated Guidelines range as the starting point in this analysis, but also considers 

the facts of the individual case. Id. at 1054-55.

Ms. Quintero is a very good candidate to receive probation in this case should she 

be found or plead guilty. She has little if any criminal history, and has been completely 

compliant with the conditions of her release. The co-defendant, who was here illegally 

and not eligible to receive probation, was sentenced to 8 months in custody. Being placed 

in confinement for restoration, which can take longer than 8 months, is fundamentally 
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unfair and violates due process given the possibility that she may be sentenced to 

probation. 

As the Supreme Court of Georgia recently held, mandatory inpatient confinement 

for competency restoration violates due process even under mere “reasonable relation” 

scrutiny. Carr v. State, 815 S.E.2d 903, 914-16 (Ga. 2018). After considering the 

reasoning of Strong and other federal cases approving mandatory commitment under 18 

U.S.C. § 4241(d), the court determined that mandatory commitment did not even bear a 

reasonable relation to the state’s interest in restoring to competency an individual charged 

with a violent crime. Id. at 914-16. It emphasized that other states had concluded that 

detention is not always necessary to determine whether there is a substantial probability 

that the accused will attain competency in the foreseeable future. Id. at 914, n.16. 

Although the Carr court agreed with the Ninth and other federal circuits that 

determination of a defendant’s likelihood to regain competency requires a “careful and 

accurate diagnosis,” it observed that “neither the legislature nor these courts have 

explained why commitment is reasonable in every case to achieve this,” because a 

defendant can be carefully evaluated by qualified professionals on an outpatient basis. Id.

at 914. It concluded that a court must consider each defendant’s individualized 

circumstances in determining whether custodial confinement is necessary and appropriate 

to further the state’s interest in competency restoration. Id. at 906, 916-17.

III. Automatic confinement for competency restoration violates equal 

protection.

Because freedom from confinement before or without trial is a fundamental right, 

any classification requiring pretrial confinement based on a mental impairment is subject 
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to strict scrutiny, i.e., it must be narrowly tailored to serve a compelling government 

interest. Dunn v. Blumstein, 405 U.S. 330, 338, 342 (1972) (classifications that burden 

fundamental rights must be “necessary to promote a compelling governmental interest”).

Mandatory detention under 18 U.S.C. § 4241(d) violates equal protection because it 

subjects those found incompetent to stand trial to a less stringent detention standard than 

that required (1) in the BRA (18 U.S.C. § 3142(e)) for other pretrial defendants, (2) in 18 

U.S.C. § 4246 for those already convicted who are scheduled for release (who may be 

committed only upon a showing of both mental disease or defect and dangerousness), and 

(3) for defendants in the Arizona state system who are found incompetent to stand trial.

As explained above, inpatient confinement is often not necessary to achieve the 

government’s interest in competency restoration; indeed, such confinement can be 

counterproductive. 

The classification here does not meet even intermediate or rational basis scrutiny 

because there is not a constitutionally sufficient reason for incarcerating all defendants 

released under the BRA who are found incompetent to stand trial while allowing other 

defendants released under the BRA, or found incompetent to stand trial in the Arizona 

state system, to remain at liberty. See Seeboth v. Allenby, 789 F.3d 1099, 1105 (9th Cir. 

2015) (to withstand equal protection challenge to a statute, government must have a 

constitutionally sufficient reason for treating groups differently). It is inconceivable that 

inpatient confinement is reasonably related, much less substantially related, to the 

government’s competency-restoration interests in every case. Carr, 815 S.E.2d at 914. 
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IV. Automatic confinement for competency restoration violates 

fundamental fairness and a hybrid of due process and equal protection 

guarantees.

The right of intellectually disabled or mentally ill individuals to pretrial liberty 

absent a showing of necessity is analogous to the convergence of equal protection and 

due process principles in the context of revoking a defendant’s probation for the failure to 

pay a fine. See Bearden v. Georgia, 461 U.S. 660, 665-666, 672 (1983) (holding that, if 

probationer could not pay despite bona fide efforts, court must consider alternate 

measures of punishment and can impose prison time only if alternate measures are not 

adequate to meet State’s interests). This analysis requires “careful inquiry into such 

factors as ‘the nature of the individual interest affected, the extent to which it is affected, 

the rationality of the connection between legislative means and purpose, [and] the 

existence of alternative means for effectuating the purpose. . . .’” Id. at 666-67 (citation 

omitted). Under Bearden’s reasoning, before a pretrial defendant can be incarcerated for 

custodial competency-restoration treatment, this Court must consider whether less 

restrictive, alternative means of treatment are adequate to meet the government’s interest 

in bringing the defendant to trial. 

Equal protection and due process analysis requires consideration of whether 

classifications and deprivations of liberty are justified under today’s standards. Sessions 

v. Morales-Santana, 137 S. Ct. 1678, 1690 (2017); Obergefell v. Hodges, 135 S. Ct. 

2584, 2603, 2602-08 (2015) (intersection of fundamental liberty and equal protection 

concerns justified striking down same-sex marriage prohibitions despite traditional 

deference to legislatures). 
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V. Automatic confinement for competency restoration violates the Eighth 

Amendment.

In noncapital cases, the decision regarding bail and release must involve a 

weighing of individual factors, and detention without bail requires overcoming a 

constitutional presumption in favor of release. Stack v. Boyle, 342 U.S. 1, 5 (1951). 

“[T]he Excessive Bail Clause prevents the imposition of bail conditions that are excessive 

in light of the valid interests the state seeks to protect by offering bail.” Galen v. Cty. of 

Los Angeles, 477 F.3d 652, 660 (9th Cir. 2007) (citing Salerno, 481 U.S. at 754). Bail is 

excessive if it is “greater than necessary to achieve the purposes for which bail is 

imposed.” Id. at 661. When inpatient hospitalization is not necessary to achieve 

competency restoration goals, the government simply does not need to detain a defendant 

in order to pursue its prosecution. In such circumstances, mandatory detention without 

bail violates the Eighth Amendment.

RESPECTFULLY SUBMITTED: February 21, 2019.

JON M. SANDS

Federal Public Defender

s/ James D. Smith

JAMES D. SMITH

Assistant Federal Public Defender

The above signed does hereby certify that on the above date he electronically transmitted 

this document to the Clerk’s Office using the CM/ECF System for filing and transmittal of 

a Notice of Electronic Filing to the following CM/ECF registrants:

Sarah Houston

Assistant United States Attorney