# United States v. Jeffrey I. Cohen > Court of Appeals for the D.C. Circuit · May 4, 1984 · 733 F.2d 128 URL: https://www.frixlaw.com/law-library/cases/9472107 ## Case - **Full name:** UNITED STATES of America v. Jeffrey I. COHEN, Appellant - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** May 4, 1984 - **Citations:** 733 F.2d 128; 236 U.S. App. D.C. 36; 1984 U.S. App. LEXIS 22838 - **Precedential status:** Published - **Opinion:** Concurrence by MacKINNON - **Judges:** Robinson, Wright, Tamm, Wilkey, Wald, Mikva, Edwards, Ginsburg, Bork, Scalia, MacKinnon - **Cited by:** 41 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9472107 ## How later opinions describe it (automated extraction) - holding no equal protection violation and that neither strict scrutiny nor intermediate scrutiny was applicable - rejecting argument that “distinctive legislative treatment of the District is ‘particularly suspect’ and thus requires more than a rational basis to support it” ## Opinion text MacKINNON, Senior Circuit Judge, concurring: I concur in Judge Scalia’s opinion. The en banc opinion, which reverses the panel decision, and the present unanimity of this court regarding the constitutional issue, make it unnecessary to deal with some of the issues that were covered by my original dissent to the panel opinion. But one part of my former dissent buttresses Judge Scalia’s opinion and is still relevant to the resolution of the issues involved: the fact that historically, from the earliest times, it has been the States that have exercised the power under the Tenth Amendment to provide for the confinement and care of insane persons. As the Supreme Court has recently stressed, history may be highly relevant to the proper interpretation of constitutional provisions. Lynch v. Donnelly, — U.S. —, 104 S.Ct. 1355, 1361 , 79 L.Ed.2d 604 (1984) (history can help “illuminat[e]” the “ultimate constitutional objective” of a particular provision); Marsh v. Chambers, — U.S. —, 103 S.Ct. 3330, 3334 , 77 L.Ed.2d 1019 (1983) (“historical evidence sheds light ... on what the draftsmen intended,” and long-standing practice is evidence of the meaning of a constitutional provision); Walz v. Tax Commission, 397 U.S. 664, 678 , 90 S.Ct. 1409, 1416 , 25 L.Ed.2d 697 (“an unbroken practice ... is not something to be lightly cast aside”). The portion of my original dissent reprinted below demonstrates that care and commitment of the insane is, and has been, a uniquely State function. A nationwide commitment law — which the appellant advocates — would give rise to serious constitutional questions regarding the scope of the authority of Congress to act in the general field of insanity. The constitutional doubts that would surround a contrary decision lend further support to the court’s disposition of this case. The following excerpts are from my dissent to the original panel opinion: “As has been shown, Congress has not attempted to enact a federal automatic commitment act. Furthermore, it is highly questionable whether Congress even possesses the constitutional authority to require the compulsory commitment and permanent care of insane persons acquitted of United States Code offenses outside of the District____ [Wjhen a person brings suit on equal protection grounds to challenge the constitutionality of a governmental action, it must appear first that the same sovereign had jurisdiction over all the classes of persons involved, and, second, that this same sovereign possessed the constitutional authority and duty to provide the same benefits or protections to them. Equal protection analysis only has validity if these requirements are satisfied. . . . . . “A. Congress’ Power to Provide for Commitment of Insane Persons “Because the government can only act ‘unequally’ with respect to two classes if it has identical power to act upon them and refuses to act equally, the contention that equal protection is denied raises the important question of whether Congress has constitutional authority to enact automatic criminal commitment procedures to apply to all defendants charged with United States Code offenses who are tried in United States district courts outside the *151 District and found not guilty solely by reason of insanity.... . . . . . “B. The Federal Mental Defectives Act “A serious question exists as to whether Congress possesses the constitutional power to enact a nationwide federal commitment procedure for all persons acquitted of federal crimes who raised an insanity defense. Congress has already legislated to confer upon the federal courts a residual, emergency authority to commit persons, accused or convicted of committing federal offenses, to the custody of the Attorney General in the event that suitable arrangements with the person’s state of residence for his care cannot be made.19 This expressly limited residual authority granted to the federal courts has never been extended to allow the commitment of persons acquitted of federal crimes. Because the power to act in the general field of lunacy is a power reserved to the states under the Tenth Amendment,20 and that full responsibility has been traditionally exercised by every state, it may be seriously doubted whether the federal police power legitimately could or should be extended to encompass every person acquitted on an insanity defense of federal crimes____ “The federal decisions that have considered the power of Congress to legislate in the lunacy area have arisen as challenges to the constitutionality of the Federal Mental Health Defectives Act of September 7, 1949, 63 Stat. 686 , now codified at 18 U.S.C. §§ 4244-4248 (1976). “Section 4244 sets forth the procedure for determining mental incompetency during the period ‘after arrest and prior to the imposition of sentence or prior to the expiration of any period of probation.’ A similar procedure is provided in section 4245 for persons in prison who are believed to have been mentally incompetent at the time of their federal trial but where the issue was not raised or determined before or during the trial. “Section 4246 provides that whenever the trial court determines, under sections 4244 and 4245, that an accused is or was mentally incompetent, the court may commit the accused to the custody of the Attorney General until the accused becomes mentally competent to stand trial or until the pending charges against him are disposed of according to law. Further, under section 4246, if the court after a hearing as provided for in sections 4244 and 4245 finds that the conditions specified in section 4247 exist, the commitment will be governed by the provisions of section 4248. “Section 4247 covers situations when a prisoner’s sentence is about to expire and the prison board of examiners finds him insane or mentally incompetent and a probable danger to the safety of the officers, property, or other interests of the United States. If the board further finds that suitable arrangements for his custody and care are not otherwise available, the statute requires the court to have the prisoner examined by at least two psychiatrists and to hold a hearing. If the court then determines on the record that the above specified conditions exist, it may in its discretion commit the prisoner to the custody of the Attorney General. “Section 4248 provides that the commitment will continue until sanity is restored, or until the prisoner’s condition so improves that he will not endanger the safety of the officers, property or other interests of the United States, or until suitable arrangements are made for the care of the prisoner by his state of residence. The prisoner retains at all times his right to establish his eligibility for release by writ of habeas corpus. “The constitutionality of these provisions came under attack in Wells v. Attorney General of the United States, 201 F.2d 556 (10th Cir.1953), where the defendant, charged with a United States Code offense, was found to be mentally incompetent in advance of trial and was committed to the custody of the Attorney General under 18 U.S.C. § 4246 , supra. The defendant subsequently filed a habeas corpus petition. It was denied and he appealed. On appeal the defendant claimed that his mental in *152 competency was permanent, not temporary, that he in effect would be committed for the remainder of his life and that the federal government did not possess the constitutional authority to carry out permanent commitments. “Because the district court had made no finding as to whether the defendant's mental condition was permanent or temporary, a divided panel vacated the district court’s judgment denying the writ and remanded the case with directions to make the appropriate finding. In reaching its decision in Wells , the Tenth Circuit ruled: The several states in their character as parens patriae [21] have general power and are under the general duty of caring for insane persons. The prerogative is a segment of police power. In the exercise of such power, insane persons may be restrained and confined both for the welfare of themselves and for the protection of the public. And if the exactions of due process are met, such restraint and confinement do not violate any constitutional right of the individual, [citations omitted] While the care of insane persons is essentially the function of the states in their sovereign capacity as parens patriae, and while the federal government has neither constitutional nor inherent power to enter the general field of lunacy, Congress has the power to make provision for the proper care and treatment of persons who become temporarily insane while in custody of the United States awaiting trial upon criminal charges, and to make provision for the care and treatment of federal prisoners who become mentally incompetent during their incarceration after conviction, [citations omitted]. “Wells, supra at 559 (emphasis added). This ruling was expressly approved by the Ninth Circuit in Higgins v. United States, 205 F.2d 650, 652-53 (9th Cir.1953), another case attacking the constitutionality of 18 U.S.C. §§ 4244 and 4246. The recent decision in United States v. Clark, 617 F.2d 180 , 184 n. 5 (9th Cir.1980), recognizes that the general field of lunacy is reserved to the states, and continues reliance on Higgins . “C. The Supreme Court’s Decision in Greenwood v. United States. “Following the decisions in Wells and Higgins that the federal government may make provision for the care and treatment of those who have become insane temporarily while in its custody awaiting trial, or during incarceration after conviction, the Eighth Circuit in Greenwood v. United States, 219 F.2d 376 (8th Cir.1955) (en banc), aff'd, 350 U.S. 366 , 76 S.Ct. 410 , 100 L.Ed. 412 (1956), considered the further question whether Congress possesses the constitutional power to provide for the care and custody of an accused whose mental incompetence is or may be of permanent or indefinite duration. Id. at 386 . The Greenwood court also considered the contentions that sections 4246-4248 of Title 18 U.S.C., the Mental Defectives Act, impermissibly encroach upon powers reserved to the states by the Tenth Amendment and violate the due process clause of the Fifth Amendment. Id. at 378 . “The Eighth Circuit held that the validity of the statutes did not depend upon the probable duration of the mental incompetency of the federal prisoners; and that the statutes neither violated the due process clause of the Fifth Amendment nor encroached upon the police power of the states reserved to them by the Tenth Amendment. “In affirming the decision of the Eighth Circuit, the Supreme Court stated that the statutes deal with mental disabilities which seem more than temporary in duration, and that Congress had power to enact them under the Necessary and Proper Clause of the Constitution. Greenwood v. United States, 350 U.S. 366, 373-75 , 76 S.Ct. 410, 414-15 , 100 L.Ed. 412 (1956). However, the Court expressly limited the scope of its holding by stating that it decided no more than the situations before it and did not imply any opinion on situations not then before it. Id. at 376 , 76 S.Ct. at 415 . *153 “In its discussion in Greenwood of the extent of national power under the Necessary and Proper Clause, the Court stressed that the prisoner was in federal custody and reasoned: “The petitioner came legally into the custody of the United States. The power that put him into such custody — the power to prosecute for federal offenses — is not exhausted. Its assertion in the form of the pending indictment persists.” Id. at 375, 76 S.Ct. at 415 (emphasis added). This language of the Court raises the question of the point at which the federal enforcement power is exhausted. The logical deduction from the Court’s decision in Greenwood is that the power of the federal government to place insane persons in custody and make provision for their care, absent the plenary power that Congress possesses in the District of Columbia, terminates when its.power to prosecute for federal offenses is exhausted. If a person is convicted, and he is sentenced to imprisonment, the federal government’s power over him obviously continues as an incident of its lawful custody, but if the person is found not guilty by reason of insanity, or is otherwise acquitted on an insanity defense, the government’s power to confine him terminates barring some highly unusual circumstances. “In reaching its decision the Court quoted from a report of the Committee of the Judicial Conference 22 which stated: If the accused’s mental disability appears not to be a transitory condition, but in all likelihood he will, because of his insanity, never be brought to trial, it would seem that as a general rule the federal government should not assume responsibility for his hospitalization merely because he has been accused (but not convicted) of a federal crime. Normally such a person should be turned over to the state of his domicile to be confined in a state mental hospital if hospitalization is called for. But there may be cases where the accused’s domicile cannot be satisfactorily established and where no state will assume responsibility for his care. The federal government may then be faced with the practical situation that it has lawful custody of a person whom it is not safe to let at large. “Greenwood, 350 U.S. at 373-74 , 76 S.Ct. at 414-15 (emphasis added). “A fair reading of Greenwood compels the conclusion that the United States pursuant to its federal enforcement power may make provisions for the custody and care of persons charged with or convicted of federal offenses in the event suitable arrangements for their care and custody cannot be made with the states of their residence. Implicit in this latter provision is the recognition that the care and custody of the insane is basically a state function and duty and, barring some emergency situation, the federal government should not provide, outside the District of Columbia, for federal commitment, automatic or otherwise, of persons acquitted of federal offenses who have raised a successful insanity defense. The custody and care of such persons is a state obligation in most cases. “D. Historical Background of State Care of Insane. “Regardless of whether the power to commit, treat, and care for the mentally ill are powers reserved to the states by the Tenth Amendment, history unequivocally confirms that they are functions that the states traditionally have fulfilled and continue to fulfill. With the notable exception of Virginia, which founded a public asylum for the insane in 1769, 23 during the colonial period and during the first forty years following independence, the insane were commonly relegated to local jailhouses and poorhouses or lived with family and friends. 24 Then in the second quarter of the nineteenth century a dramatic transformation occurred and many states began constructing public hospitals for the mentally ill. The sudden willingness of many states to become involved in the care and treatment of the mentally ill stemmed from remarkable claims of easy curability and high-percentage recoveries. 25 By 1850 almost every legislature in the northeastern and midwestern states supported an asy *154 lum; by 1860, twenty-eight of the thirty-three states had constructed institutions for the insane. 26 Although there has been a progressive development in the degree to which states have assumed responsibility for the care and supervision of the insane within [their] boundaries, the states and their political subdivisions have historically assumed sole responsibility for the insane. 27 “The Wells-Higgins-Greenwood line of cases does not firmly resolve the particular question before this court. At the very least it raises substantial questions about the power of Congress to provide for automatic or other commitment procedures for defendants who were charged with federal offenses outside the District of Columbia and whose sole relationship to the federal government is that they were charged with a federal offense and found not guilty by reason of insanity. This uncertainty in the existence of congressional power undermines one of the fundamental premises upon which [any finding of an equal protection violation would have to rest]. ..." The legislation that became 18 U.S.C. §§ 4244-4248 was originally proposed by the Judicial Conference of the United States after extensive study by a select committee of federal judges from different circuits. A. Deutsch, The Mentally III In America 230 (2d ed. rev. 1949) [hereinafter Deutsch ]. D. Rothman, The Discovery of the Asylum 130 (1971) [hereinafter Rothman ]. See generally, Deutsch, chap. VIII, "The Cult of Curability and the Rise of State Institutions.” Rothman at 130. See generally, Deutsch, chap. XII, "The Trend Toward State Care.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9472107. Public record. Not legal advice.