Appendix — Jones v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

a ee ee

1978, §£24-301(d), the court committed Mr. Jones in-

definitely to St. Elizabeths Hospital. This case presents

one question: whether Michael Jones is constitutionally

entitled to release from St. Elizabeths upon expiration of

the maximum period for which he could have been im-

prisoned (in this case one year), unless the government

carries the burden of proving, at a civil commitment

hearing, D.C. Code 1973, § 21-545(b), that Mr. Jones is

still mentally ill and dangerous to self or others.

Appellant dees not challenge the validity of his initial

commilment Lo Si. Elizabeths after the “release hearing.”

On the assumption, therefore, that this commitment was

lawful, we eam perceive no constitutional requirement

that appellawt be releoscd or civilly committed at the end

of the maximum imprisonment period, for that period

bears ne relationship to the unchallenged basis for ap-

pellant’s hospital confinement: that he is mentally ill, is

dznyerous to self er others, and should receive treatment

until he is well enough for release. We therefore affirm

ihe denia! of appellant’s motion for civil commitment or

_ ‘

Sake) Ke

Gn September 19, 1975, the police arrested Michael

Jones for attempting to steal a coat from a depart-

mem store, The next day the government charged him

With atiempted petit larceny; and, following a com-

petency examination yielding a finding of mental illness,

he was arraigned and erdered to St. Elizabeths for men-

ta! ohoervation pursuxnt to D.C, Code 1978, § 24-301 (a).

He remained in the District of Columbia jail for four

and one-half months until bed space became available at

St. Blizaheths on February 4, 1976.

Following the oleervation period, appellant went to

trix! on siipulated facts. In an uncontested proceeding,

[3225]

the trial judge entered a judgment of not guilty by rea-

son of insanity. Thereafter, he recommitted appellant to

St. Elizabeths temporarily, pursuant to D.C. Code 1973,

§ 24-801(d)(1). On May 25, 1976, appellant was af-

forded his § 24-301(d)(2) “release hearing,” at which

the court determined that he was mentally il] and likely

to be dangerous to himself or others in the reasonable

future. The court accordingiy continued his commitment

to St. Elizabeths—indefinitely.

At this juncture the procedural history of the case be-

comes murky. Apparently, upon conclusion of the May

25 proceeding, the court ordered a further he.ring for

November 29, 1976. When that date arrived appellant’s

counsel appeared before Judge Hamilion and orally re-

quested that appellant be released—or civilly committed

—since his cumulative hospital confinement had exceeded

the one-year maximum period of incarceratior .or at-

tempted petit larceny. No attorney appeared for the

< government. The judge responded with an order that the

government either pursue civil commiiment or show

cause why the “criminal commitment” should not be

vacated by January 18, 1977.

During the seven-week period which followed, it ap-

pears that the government initiated the civil commitment

process—resulting in a recommendation of such commit-

ment by the staff of St. Elizabeths—-and then changed

course, deciding to contest the court’s order. The govern-

ment persuaded the court to modify its order by requir-

ing appellant to file a written motion for civil commit-

ment or release, and by allowing the government time to

respond.

The matter came on for hearing on February 22, 1977.

After extended argument, the ceurt denied «appellant's

motion and reaffirmed the findings of May 25, ie., that

[3226]

appellant was mentally ill and likely to be dangerous.

Appellant noted an appeal and, on June 14, 1977, filed a

motion in this court for summary reversal. The govern-

ment responded with a motion for summary affirmance.

The motions division of this court rejected both requests

for summary disposition. Instead, we ordered expedited

oral aryuiment on the appeal. After argument before this

division of the court, we called for post-argumcnt briefs.

In his final brief, appellant confirms the narrow scope

of the question presented in this appeal. “|Ajppellant’s |

position has been, and remains, ... that even if an auto-

matic commitment following an insanity acquittal is

permissible, continued confinement beyond a certain point

of time—-at*the latest when the prison sentence which

coukl have been imposed had the defendant been con-

victedl has run---is constitutionally impermissible uniess

the povernment can prove the necessity of such continued

confinement just as it would have to prove the necessity

where it seeks civil commitment” (emphasis in original). \.

Thus, we are not confronted with a challenge te the proc

ess for initial commitnient which ordinarily follows an

insanity nequittal. We are faced only with the consti-

tutional propriety of hospitalization beyond the period of

A maximum prison term, absent invocation*of the pro-

tections of the civil commitment process.

il.

According to appellant, the principles of Barstrum ev.

Herold, 383 U.S. 107 (1966), Bolton v. Harris, 130 U.S.

App... 1, 395 F.2d 642 (1968), and, more directly,

Waiie o Jacobs, 14 US.App.D.C. 281, 475 F.2d 392

(1973), mandate # conclusion that the equal protection

clause is transgressed when insanity acquitees ure held

beyond their maximwm potential terms of imprisonment

| 3227)

without the intervention of civil] commitment procedures.’

To comprehend his argument fully, a brief history is ir

order.

Prior to the circuit court’s 1968 Bolton decision, a suc-

cessful insanity plea resulted in automatic, indeterminate

confinement to a mental hospital. Because there was no

required judicial review of such confinements, the “statu-

tory scheme would [have] conceivably allow{ed] a patient

committed under [D.C. Code 1967, § 24-301(d)] to ve-

main in the hospital for the rest of his life without «

judicial determination that he |was] mentally ill or that

he [was] still likely to commit dangerous acts.” Bolton,

supra at 7, 395 F.2d at 648. At that time, however, as

today, the 1964 Hospitalization of the Mentally Til Act,

L.C. Code 1973, §§ 21-541 to -545, provided numerous

protections for civilly commitied persons—including,

significantly, the right to a jury trial with the burden

on the government to prove mental illness and danger-

ousness beyond a reasonable doubt. In Lollon, therefore,

the cirevit court explored the “sharp contrast” between

the two commitment schemes in light of the Supreme

Court’s Baystrom principle “that the commission of

criminal acts does not give rise to a presumption of

dangerousness which, standing alone, justifies substantial

diiference in commitment procedures and confinement

conditions for the mentally ill.” DBollon, sapra at 6,

395 F.2d at 617. Concluding that the differences be-

tween the two groups, insanity acquitecs and civil com-

mitecs, could not constitutionally support most of the

'The Fifth Amendment's due process clause includes an

equal protection safeguard against federal and District of

Columbia governmental actions. Bolling v. Sharpe, 347 U.S.

497 (1954); Davis v. Washington, 168 U.S.App.D.C. 42, 43

n.2, 512 F.2d 956, 957 n.2 (1975), ver’d on other grounds,

426 U.S. 229 (1976).

|3228]

—-———

EEE ———_———— .- en

——e—_ OL

differences in procedure, the court read most of the 1964

Act’s civil commitment safeguards into the “insane

criminal” commitment scheme.’ Thereafter, acquitees

were entilled lo a “Bolton hearing” after trial: “a judi-

cial hexring with procedures substantially similar to

thuse in civil commitment proceedings.” Jd. at 10, 395

¥'.2d at 651 (footnote omitted).

In 1970, however, Congress responded to the Bolton

decision by amending § 24-301 of the D.C. Code. Dis-

sutisfied with the anticipated consequences of Pollon, .

Congress attempted to accommodate the acquitee’s con-

stitutional rights and provide rehabilitative opportunities

while protecting the public against anticipated danger.

United Slates v, Jackson, 179 U.S.App.D.C, 375, 381, 553

P.2d 109, 115 (1876). By the terms of the amended, and

currently applicable, $ 24-301, an insanity acquitee once

ugain faeces automatic commitment:

If any person tried upen an indictment or infor-

motion for an offense raises the defense of in- aaa \

sunity and is acquitted solely on the ground that

ie wis insane al the time of its commission, he

shall be committed to a hespital for the mentally

i} wnti) such time as he is eligible for release

pursuant to this subsection or subsection (e).

PC Cade TOTR, £ 24-BOTdY OD).

‘the next paragraph of the sintute, however, eliminates

the pre Bellow posdbility ef indeterminate commitment

without judicinl review. Congress previded for an auto-

nutlic. iepishutively tailored “release hearing” within 50

tiuve of che £§ 24-S0Ld)¢1) eoanmitiment:

*The court expressly permitted two distinctions to con-

tinve: (1) sutomatic, temporary commitment of acquitecs

and (2) mandatory court review of a hospital's release deci-

sion for aequileus. Rolion, supra at 10-11, 395 F.2d at 651-52.

[3229]

A person confined pursuant to paragraph (1)

shall have a hearing, unless waived, within 50

days of his confinement to determine whether he

is entitled to release from custody. ... If the

hearing is not waived, the court shall cause

notice of the hearing to be served upon the

person, his counsel, and the prosecuting attorney

and hold the hearing. Within ten days from the

date the hearing was begun, the court shall de-

termine the issues and make findings of fact

and conclusions of law with respect thereto.

[D.C. Code 1978, § 24-301(d)(2), in relevant

part. |

Additionally, the 1970 amendments provided for habeas

corpus relief, § 24-301(g), as well as for a more specific

motion mechanism for seeking release (no more often

than every six months), § 24-301 (k).

As we have noted, however, the major impetus for

legislative action was anxiety ubout the Bolton limitation

on the ability to continue commitment of those who suc-

cessfully :nterpese insanity defenses to criminal charges.

Thus, for our purposes here, the most notable features of

the 1970 amendments are not the new procedures afforded

acquitees but the omitted or retracted guarantees which

had been extended by the Bolfon decision. It is the dif-

ferences beiween the post-1970 “modified Polton” scheme

under which appellant was committed and has continued

to be confined, D.C, Code 1973, § 24-301, and the current

civil commitment processes, D.C. Code 1973, § 21-501

et seq., which had been extended to acquitees by Boltor,

that must be the feeus-of our equa! protection analysis.

These differences arc substantial.

Civil commitees have “commitment hearings” at which

the government bears the burden of proving “mental

[3230 |

Mncas” and likelihood of injury to “himself or other per-

cons” beyond a reasonable doubt. D.C. Code 19738, £ 2)-

pAhtb): Jn re Balluy, 157 U.S.App.D.C. 59, 482 F.2d

Gis (1973). Im contrast, at a § 301(d)(2) “release

hearing,” the acquilce must carry the burden of demon-

sirating by a “preponderance of the evidence” that he

“has recovered his sanity and will not in the reasonable

future be dangerous to himself or others.” D.C. Code

17. ¥¥ 24-BO1 (dd (2), -BO1(e). The civil commitment

process affords a jury, > 21-545; the acquitee “release

hearing” process does not. See ¢ 24-301. Release of a

civil commiiee does not require court supervision, § 21-

54G. wherens the court retains the last word for acquitees,

4-201(q). ‘The civil scheme furnishes regular six-

sunih review initiated by the hospital, $ 21-548, while

Hae scheme for acquitees mandates review only wpon a

on for relief, £24-801(k), or petition for habevs

eorpus, § Ld-oOd tet, initinted by the patient (while per-

review inl isthatl hy the hospital, £ 24-50) te)).

Appellant mutintains Uhat even if the rationale for

Gideront commelitinent precedures is valid, it must expire

.» time mo iter than the end of the maximum prisen

could bave resulted from criminal conviction.

{bye has net been resolved, there hi: bs

homed: discussion concerning the propriety of the 1970 insanity

enmanitiment amendmcits and their vuln rability of a new

piel -ivp chatle: See Jicthea eo. United St , P.C.Apt

wens Ad G4. U2 C1u7G), ccrl. denied, 455 U.S. G11 C1977):

vad States vo. Jacksoi nova: United States v. Keke

iS Ane... Bt, 40-41, 548% F.2d 178, 1 ri.

denied. 429 U.S. 1063 (1977) 5 United States v. Wright, 167

US.App. D.C. 509, SEP m9, 511 F.2d 1811, 1515 n.8 (i976);

lohwson vw. Rebinsen, 166 U.S.App.D.C. 62, 66, 509 F.2d 390,

“ity (POT7): United States vr. Brown, 155 U.S.App.D.C. 402,

stat. 478 F.2d 6e6, GOS n * (1973); Diven v. Jacobs, 158

ey geeg. 427 F.2d 589, GO2-04 (1970)

(ieventhal, 4, concerring and dissenting).

[8231]

His claim, in effect, is that the running of the potential

prison term activates Baxstrom and Bolton principles

which entitle him, at that time, to additional safeguards.

We therefore turn to the merits of appellant’s claim.

Ill.

The United States Court of Appeals for the District

of Columbia Circuit has given a measure of judicial

endorsement to appellant’s theory in Waite v. Jacobs,

supra, In Waite, a pre-Bolton acquitee who could not

reap Bolton’s prospective benefits, Bollon, supra at 12-13,

$395 F.2d at 653-54, made essentially the same claim

that appellant makes here. The circuit court found merit

in this equal protection claim. The court observed tha

after the expiration of the period for which an

acquittee might have been incarcerated had he

been convicted, it may be irrational, within the

meaning of equal protection doctrine, to dis-

tinguish between an acquittee and a commitee.

Acquitees who have been confined for that period,

therefore, may be entitled to treatment no dif-

ferent from that afforded commitces. [Waite v.

Jacobs, supra at 284, 475 F.2d at 395. |

The court then stated the issne to be “whether appellant.

in secking release from confinement, is on an equal foot-

ing with a commitee,” id. at 288, 475 F.2d at 399, or, as

n matter of law, is situated differently from a commilee.

Adverting to the radical differences in initial treatment

(pre-Bolfon vy. civil commitment}, the court perceived

that pre-Bolloxn acquitees and commitees were not on

equal footine; it then opined that equal protection might

well be transgressed in Waite’s case, for “just as it is

unconstitutional to place a burden on only one of two

similarly situated persons |the traditionally accepted

meaning of equal protection], se also may it be irrational

| 3232 |

lial - ———

to place similar burdens on persons situated differently.”

Id. ‘emphasis added). The court concluded, “it would

seem that [appellant! hald] a right to a hearing, with

all the procedural safeguards available in civil commii-

ment proceedings.” Jd. at 289, 475 F.2d at 400. Be-

cause, however, there was a possibility that Waite’s com-

mitment actually was attributable to a civi! commitment

whieh had preceded the criminal! action, and because the

court navel eq i] protection analysis had not been

briefed or arened, the court did not order specific retief;

ipetend, it remanded the ease to the district court for

further proceed ny

tt is this novel, call it “equalization,” theory of equal

protection which appellant invokes here—a_ theory that

equal treatment of the two groups, commitees and ac-

guitees, eventually requires remedial, 1e., compensating,

procedures for aequilees because their initial commit-

ments were more perfunctory. For several reasons, how-

ever, we have concluded that the Waite analysis is in-

aprlieahle te this case.

Al leust four subscquent circuit court opinions have men-

liomedt Welte approvingly. Only one, however, definitely ap-

praved the “equalization” approach to an egual protection

che tonee, see Johnson v. Robinson, supra, and the expression

of aporoval in Johkwsexn is dicta. (The court, observing that

srpernst ica Wished the “constitutional suggestion” of Wadi

tran termed into a he'’ding, required appellant first to present

] tVolleebased arvument to the local District of Columbia

ciomibie.) In Uniled Siati vr. dele rm, supra: United State v.

7 , Svpra; nnd pPivon v. Jacol /| supra (L vent}

conenrring and dissenting), the court reall rood Waite’

‘oot! fooling” conclusion; ic., that at the end of the maxi-

yen period for which acquitees could have been sentenced,

no differentiation is acceptable between them and committces.

li is not clenr, however, that those opinions adopted the

“oomslization” analysis mandating additional, remedial pro-

codures for nequitces at that point.

[3233]

eet

In the first place, Waite’s situation is factually dis-

tingwishable from that of appellant Jones. Waite, a

pre-Bolton acquitee suffered from the “no judicial re-

view” (save habeas corpus) system condemned in Bolton.

He had been automatically, indefinitely committed as

presently ill and dangerous because he successfully raised

a mere reasonable doubt about his legal sanity at the

time of committing the offense. Because of the un-

fortunate circumstances of his pre-Bolton status, Waite

had remained confined in a mental hospital without ever

receiving constitutior “', procedural protections.”

Jones, on the other hand, is a post-Bolton, post-1970

acquitee. Unlike Waite, Jones carried the burden at his

criminal trial of proving by a “preponderance of the evi-

dence” that he was insane at the time he committed the

offense. D.C. Code 1973, § 24-301(j). In addition, while

receiving less than a Bolton (civil commitment) hearing

after the criminal trial, Jones did receive substantially

more protection than Waite by virtue of the § 24-

901(d)(2) “release hearing.” Thus, upon Jones’ indefi-

nite commitment, he was in a factually different posture

from Waite vis-a-vis civil commitees. See Johnson v.

Robinson, 166 U.S.App.D.C. 62, 66, 509 F.2d 395, 399

(1974).

Second, at the time of indefinite commitment, Jones

also was in a legally different posture from Waite vis-a-

* For discussions of the irrationality of basing a finding of

present mental illness on a previous doubt about sanity, sce

United States v. Brown, supra at 409, 478 F.2d at 613

(Wright, J., dissenting) ; Bolton, supra at 6, 395 F.2d at 647.

court’s reasoning is intimated by the Waite opinion, Waite v.

Jacobs, supra at 284 n.7, 475 F.2¢' at 395 n.7, and by Johnson

v. Pobinson, supra at 63, 509 F.26 at 396, both of which re-

ferred to the “anomaly” created by balton’s prospective appli-

cation.

[3234]

vis civil commitees, Bees e Waite was a a pre-Baxrstrum,

pre livtiont . quitee, his iuitial commitment was consti-

tutionally invalid; Uhe court accordingly found him, 2:

mation of law, “situat ed differently” from a civil com-

mites. (Waile, supra, al 20d- 89, 475 F.2d 399-400. Jones,

to the contrary, proceeds from the premise that the § 24-

e011) safeguards in his release hearing were constitu-

tionally sufficient to fill the historical gap in protection

(upon initial commitment) between acquitees and com-

miices--the gap which persuaded the circuit court to as-

sist Watlte, ca Bolton before him, on equal protection

The present case, therefore, is significantly different

from Waite, which was 4 decision explicitly limited to

pre Bolton nequitees, Watle, supra at 285 n.8, 475 F.2d at

$96 ns. We are ted here with a much narrower

siestion: Whether, as a matter 01 equal protection, the dif-

ference “in ali ¢ jnitial commitment procedures for

ACUI snd comMmiliee are ne vertheless significant

emotive LO require a rem dy for the acquitec at ihe ex

pirntion of the raaxiim period for which he could ho

fenced-—a remedy granting him cither his out-

or a serona (this time purely civil) com-

rr sroceeding. ‘The cor stiiutional rabonwe !

remedy, assuming Jor ayy nment’s sake the validtt)

CF ialies eanatization Cieory For equal protection, W wid

be that the post-1970 acauitee, like the pre-Dollon ae

auiiee, bas been “siinaicd differently” from a commit

(white trented the sume}, despite the presuim 1 validity

of the respective initial commitment procedurcs. We

therefore must ON: mine whether, as a matter of jaw,

situntional differences ¢an be suid to exist upon coniin

\n ee © 94.20] release hearing and a e¢cm-

mitce’s © 21 (» civil commitment hearing both pur-

oon!

VaeVV }

port to determine whether one is mentally ill und danger-

ous.’ Thus, these respective procedures can result in

differently situated confinees only if the aequitee’s hear-

ing results in a perversion of that determination when

compared with a commitee’s hearing.

One such perversion would be a determination derived,

in part, by reference to the criminal offense." Because

appellant’s confinement after a ¢ 94-301 release is not

challenged, however, appellant must be presumed to agree

that this confinement ‘s not based, even in part, on puni-

tive considerations; otherwise, it would be unconstitu-

tional under Baxsirom, supra, sec Humphrey v. Cady,

405 U.S. 504, 510-11 (1972); Waite, supra at 985-86.

475 F.2d 396-97; note § supra. Therefore, absent any

explanation as to why the § 24-8301(d) release hearing

results in lesser quality findings of illness and dangerous-

ness than a § 21-545(b) civil ecmmitment hearing, we

must conclude that the findings are legally the same.

: "The determination for an acquitee is whether he “has re-

covered his sanity {and}... will not in the reasonable future

be dangerous to himself or others.” D.C. Code 1973, § 24-

s01(c). The determination for a potential commitee 18

whether “the person is mentally il) and, because of that ill-

ness, is likely to injure himself or other persons if allowed to

remain at liberty.” D.C. Code 1975, & 21-545 (b).

‘More particularly, onc might argue that an ncouitee’s

commilment 1s actually based on more than a mentally

ill and dangerous finding—that the acaquitee’s burden 10

prove his sanity, without right to jury trial, reflects a puni-

live gloss derive ad from his previous criminal behavior. It

would follow that an aeguitee is situated differently from a

commitee because this extra, punitive basis for commitment

has permitted an abbreviated, more burdensome release hear-

ing, resulting, arguably, in a less valid finding of mental ill-

ness and dangerousness than the civil commitment process

would yield.

(3236)

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only concern is a determination as to sanity and aanger-

ousness, With a view to rehabilitation. Given these situa-

tional differences between acquitees and potential com-

mitees immediately prior to the initial commitment

determination, the difference in hearing procedures is

arguably justified ; there is no constitutional prohibition

against rational differences in the treatment of differently

situated persons.

There is accordingly, no room for appellant’s «enten-

tion that his hospital confinement must cease (subject

to civil commitment) at the end of the maximum term

for which he could have been confined to prison. Although

the confinement procedures differ for acquitees and com-

mitees, the status of each group after confinement is the

same: each has been found mentally ill and dangerous,

and each, as a result, has been confined for the protection

of self or society, as well as for treatment, not punish-

ment.” The termination of the maximum sentence period

is thus irrelevant to the status of acquitees; that termi-

nation does not alter the similarity of situation between

acquitees (after confinement) and commitecs.

In summary, the length of a hypothetical potential

prison term has no relationship to the rehubilitative goal

of hospital confinement. if, as the presumed validity of

appeliant’s initial commitment implies, the differences in

herring procedures for nequitees and com itees are justi-

fied becuuse, prior to hearing, they are differently siiu-

ated, there is no rational, let alone constitutional, basis

for arguing that an abrupt change of procedure is re-

quired simp'y because somesshere along the line the

hypothetical maximum, sentence has ended. The proper

—

* Appellant has not argued that his physical or other treat-

ment at St. Elizab ths. as an acquitee, differs in a legally sig-

nificant way from that accorded to commitces.

[3238]

APPENDIX B

DISTRICT OF COLUMELIA COURT OF APPEALS

FEKREN, Associate Judge: Michael A. Jones was found

not guilty of petit larceny by reason of insanity. There-

after, the court held a “release hearing” pursuant to

D.C. Code 1973, § 24-301(d), and committed Jones in-

definitely to St. Elizabeths Hospital. In our first opinion,

reported a wow A.2d 183 (1978), we rejected Jones’ con-

tention that he is entitled, as a matter of equal protec-

Lion, te release from St. Elizabeths upon expiration of

the maximum period for which he could have been im-

prisoned unless the government carries the burden of

proving at a civil commitment hearing that he is stil!

mentally ill and dangerous to self or others. See D.C.

Code 1973, §21-545(b). More specifically, assuming the

validity of Jones’ confinement after the “release hearing”

(which is uneontested here), we held there is

ne constitutional requirement that appellant be

released or civilly committed at the end of the

maximum imprisonment period, for that period

bears no relationship to the unchallenged basis

for «ppellant’s hospital confinement: that he is

mentally ill, is dangerous to self or others, and

should receive treatment until he is well enough

for velease. |Jonex, supra at 184.)

After reconsideration, we vacate our first order. We

conchwie that an sequitee may not be confined for treat-

ment pursuant te §24-301(d) beyond the maximum

period for which he or she could have been imprisoned

for the underlying criminal charge. An acquitee is en-

titled to velease at the end of that period unless the

yovernment obtains a civil commitment. Accordingly, be-

cause that maximum period of one year has expired here,

appellant Jones shall be released unless civilly committed

forthwith.

{171}

Central to the analysis in our first opinion was the

following legal premise, based on Bazxstrom v. Herold,

383 U.S. 107 (1966): if commitment to St. Elizabeths

after a § 24-301(d)(2) “release hearing” is to survive

an equal protection challenge, it may not be punitive in

any respect.’ In other words, the commitment procedure

must be wholly rehabilitative—wholly a process for find-

ing someone mentally ill and dangerous to self or others.

Jones, supra at 188 & n.7* Consequently, we concluded

that appellant’s failure to challenge the § 24-301(d) “re-

lease hearing” procedure meant that

appellant must be presumed to agree that this

confinement is not based, even in part, on puni-

tive considerations; otherwise, it would be un-

constitutional under Barstrom, supra; see Hum-

phrey v. Cady, 405 U.S. 504, 510-11 . . . (1972);

1In Barstrom, the Court held that a prisoner who was

civilly committed as insane at the end of his prison term

was denied equal protection by a statutory procedure which

deprived him of a jury review accorded to other civil com-

mitees. Since Baxstrom, the Court has upheld other equal

protection challenges by individuals who enter mental health

facilities through the criminal process. See Jackson v. Indiana,

406 U.S. 715 (1972) (equal protection violated by state pro-

cedures which provide more lenient commitment standards

and more stringent release standards for those criminal de-

fendants found incompetent to stand trial than for those

civilly comnmitied) ; Humphrey v. Cady, 405 U.S. 504 (1972)

(remand for evidentiary hearing on claim that protections

afforded those civilly committed were not extended to those

committed under sex crimes act).

* Put still another way, if § 24-301(d) is constitutional, it

must merely be another equally valid route to the same finding

derived from the civil commitment process under D.C. Code

1973, § 21-545 (b). See Jones, supra at 188 n.7.

[172]

Waite |v. Jacobs, 154 U.S.App.D.C. 281, 285-

86, 475 F.2d 392, 396-97 (1973)] .... There-

fore, absent any explanation as to why the § 24-

301(d) release hearing results in lesser quality

findings of illness and dangerousness than a

§ 21-545 (b) civil commitment hearing, we must

conclude that the findings are legally the same.

| Jones, supra at 189 (emphasis added) .j'*!

In his petition for rehearing, appellant questions our

legal premise. He argues, in effect, that the § 24-301/d)

“yelease hearing” procedure is to some extent punitive,

as evidenced by the less-protective procedures afforded

acquitees than civil commitees; that Barstrom, supra,

does not necessarily make that procedure unconstitutional

aus a means for initially confining acquitees; but that the

price of constitutionality is release or civil] commitment

at the end of the hypothetical maximum prison term,

since that is the longest an aequitee can be confined for

punitive reasons without a denial of equal protection of

the laws.

—_— -—-—_—— —™

* We concluded, accordingly, that there was “no room for

appellani’s contention that his hospital confinement must

cease (subject to civil commitment) at the end of the maxi-

mum term for which he could have been confined to prison.

Althouyh the confinement procedures differ for acquitees and

commiivces, the status of each group after confinement is the

sume: exch has been found mentally ill and dangerous, and

each, ax a result, has been confined for the protection of sclf

or society, as well as for treatment, not punishment. The

termination of Lhe miaainium sentence period is thus irrelevant

to the xtatus of acquitees; that termination does not alter the

similarity of situation between acquitees (after confincment)

and commitees.” [Jones, supra at 189 (footnote omitted) .}

1173]

Appellant derives his argument primarily from United

States v. Brown, 155 U.S.App.D.C. 402, 407-08, 478 F.2d

606, 611-12 (1973), in which the United States Court

of Appeals for the District of Columbia Circuit acknow!l-

edged—and upheld—a partially punitive underpinning to

the former § 24-301{d) procedure. Specifically, the

Brown court upheld an instruction, based on Bolton v,

Harris, 1380 U.S.App.D.C. 1, 395 F.2d 642 (1968), that

the government had the burden at a “release hearing” of

proving respondent mentally ill and dangerous by a pre-

ponderance of the evidence, and further held that this

instruction would not violate equal protection even if the

government, in a civil commitment proceeding, had the

burden of proof beyond a reasonable doubt. The Brown

majority justified this lesser burden of proof in the crim-

inal commitment procedure in the following way:

The difference between the classes | acquitees

and commitees} for purposes of burden of

proof, is in the extent of possibility and conse-

quence of error. If there is error in a determi-

nation of mental illness that results in a civil

commitment, a person may be deprived of lib-

4*The Brown court, therefore, was dealing with the earlier

$ 24-8301(d) procedure. In the present case we deal with the

post-1970 scheme under which an acquitee has the burden

of proving, by a preponderance of the evidence, that he has

recovered his sanity. See Jones, supra at 185.

The recent case of In re Nelson, D.C.App., —— A.2d

(No. 13768, Dec. 4, 1979}, indicated that the proper burden

of proof in civil commitments should be “clear and convincing

evidence” rather than proof “beyond a reasonable doubt” in

light of Addinglon v. Texas, 99 S.Ct. 1804 (1979). The level

of the government's burden in civil commitment proceedings

does not affect our analysis here, however, since the burden

remains on the government.

[174]

vrty although he never posed any harm to so-

ciety. If there is a similar error in confinement

of an insanity-acquitted individual, there is not

only the fact of harm already done, but the sub-

stantial prospect that the same error, ascribing

the quality of mental disease to a less extreme

deviance, resulted in a legal exculpation where

there should have been legal responsibility for

the antisocia! action.

The matter now being discussed is suffused

with the broad consideration that modern stand-

ards of the insanity defense, not restricted to

those whd do not know right from wrong, call

fur the acquittal of persons who “may have

meaningful elements of responsibility.” And

over and above the difficulty of situations where

the issue of mental responsibility is doubtful, we

cannot wholly ignore the danger of calculated

ubnse of the insanity defense, referred to in

Lyuch vw. Overholser |, 369 U.S. 705 (1962) }.

\Brown, supra at 407, 478 F.2d at 611 (foot-

note omitted). |

Apretlant points ont that Brown went on to suggest,

on the basis of Bewstrom, supra, that there is a quid pro

guo for this weaker insanity commitment standard,

namely, that an acquitee is constitutionally entitled as

of the end of the maximum prison term to release or,

at worst, to civil commitment:

The clear implications of the foregoing analy-

sis, and Barstrom, require, however, that when

the individual has been in detention for a con-

siderable period of time, his continued detention

re! von should be governed by the same stand-

urd of burden of proof as applies to civil com-

(175)

mitments. The extent of that period calls for

sound discretion, would take into account c.g.,

the nature of the crime (violent or not), nature

of treatment given and response of the person,

would generally not exceed five years, and

should, of course, never exceed the maximum

sentence for the offense, less mandatory release

time. [Brown, supra at 408, 478 F.2d at 612

{footnote omitted) .]

In summary, appellant argues that he had been led

down the road by the United States Court of Appeals

in Brown, supra, to a point beyond which he thought he

would be taken seriously in a constitutional challenge to

§ 24-301(d).* That court had told him, in essence, not

to bother challenging the release-hearing procedure

but instead to assume that a partially-punitive commit-

ment is valid under Baxstrom, supra. Thus, he asserted

the right to release or civil] commitment as of the end

of the maximum prison term—at the point where so-

ciety’s right to any punitive gloss on confinement ends.

Accordingly, he says, our first opinion in this case viewed

his failure to attack § 24-301/d) incorrectly—and un-

fairly—by concluding that it could only have one mean-

ing: tacit acceptance of a wholly rehabilitative wnder-

pinning to the commitment procedure, which justifies

confinement beyond the maximum prison sentence. We

turn to this argument.

* Appellant presumably would acknowledge, however, that

Brown, supra, as a post-reorganization decision, is not binding

on the court. See M.A.P. v. Ryan, D.C.App., 285 A.2d 310

(1971).

* Our assumption that appellant’s acceptance of § 24-301 (d)

necessarily implied his agreement that the process was wholly

rehabilitative was based on our view that Barstrom, supra,

and Humphrey v. Cady, 405 U.S. 504 (1972), would consti-

[176]

Il.

In reconsidering appellant’s assumption, solely for the

sake of argument, that § 24-301(d) is valid, we must

put the question in perspective by outlining the differ-

ences bet he civil and criminal commitment schemes.

Appellant, as an acquitee, carried the burden of proving

his insanity at the time of the charged offense by a pre-

ponderance of the evidence. He had the right to a jury

if he had wanted one. Upon a verdict of not guilty by

reason of insanity, the District, like many states, per-

mits continued confinement for a prescribed, relatively

bricf period of observation.? The courts have justified

tutionally preclude confining acquitees under procedures less

protective than those accorded to commitees if such confine-

ment were “based, even in part, on punitive considerations.”

Joncs, supra at 189. Thus, if § 24-301(d) were valid as a

wholly rehabilitative procedure and confinement, any differ-

ence from a civil commitment determination under $21.

545(1)) could only be justified on evidentiary grounds; 7.c.,

in contrust with a civil commitment, “the ‘release whl coe

procedure for an acquitee presumably can be somewhat abbre-

viated because of the predictive value of the initial determina-

tions of insanity and dangerousness at the criminal trial.”

Jones, supra at 189. Because there is authority for such

analysis, sec, eg., luv ve Franklin, 7 Cal.8d 126, 496 P.2d 465,

10) tal. Rpte. 553 (1972) (en banc), we interpreted appel-

lant’s acceptance of his confinement under § 24-310(d) as

receptance of a purely evidentiary justification for the differ-

ences between the criminal and civil commitment procedures

—-2 justification presuming equally valid findings of mental

iiness and danyerousness under §§ 21-545(b) and 24-301 (4).

Nee Jones, supra at 188 n.7.

7 In the District of Columbia, automatic confinement cannot

exceed 50 days, D.C. Code 1973, § 24-301 (d). In Franklin,

supra at 148, 496 P.2d at 475, 101 Cal. Rptr. at 563, the court

approved ‘.y period in California. The Model Penal Code

allows six months, ALI] Model Penal Code § 4.08 (Proposed

Official Draft 1962).

(177)

this confinement, which is not required in cases of civil

commitment," on at least two grounds. Some have stressed

the continuing presumption of insanity once established

by the acquitee—an evidentiary emphasis. See, e.g., Jn

re Franklin, 7 Cal. 3d 126, 136, 496 P.2d 465, 470, 101

Cal. Rptr. 5538, 558 (1972) (en banc). Others have

emphasized the dangerousness inherent in the offense

excused by insanity, and the need for protection of the

public while psychiatric observation takes place—argu-

ably a punitive emphasis. See, e.g., Chase v. Kearns, 278

A.2d 182, 185 (Me. 1971) (en banc).

These same courts, moreover, commonly justify statu-

tory confinement beyond the observation period if, after

a review proceeding (akin to a § 24-301(d) (2) “release

hearing”), the acquitee fails to sustain the burden of

persuading the court that he or she has recovered. Their

reasoning reflects an extension of the justification for the

observation period. First, apropos of the evidentiary

emphasis. the courts note that the acquitee has initiated

and once sustained the burden of proving insanity, where-

as the prospective civil commitee has not yet so conclu-

sively manifested mental illness and dangerousness. Thus,

the presumption of an acquitee’s insanity continues. Sec-

ond, these courts conclude that, because the trier has

found beyond a reasonable doubt that the acquitee has

committed the charged offense (although he or she is

not rationally or morally responsible for that act), it is

* For example, in the District of Columbia, persons may be

detained at a public or-private hospital for up to 48 hours

for emergency observation and diagnosis upon application by

an appropriate authority and certification by a psychiatrist.

D.C. Code 1973, §§ 21-521, -522. A detained individual must be

released after 48 hours, however, unless a court order is ob-

tained. D.C. Code 1973, § 21-523. Williams v. Meredith, D.C.

App., 407 A.2d 569 (1979).

[178]

not unreasonable for society, as a matter of self-protec-

tion, to demand that the acquitee receive treatment for

mental illness. Such treatment can be justified for at

least us long as the maximum possible prison term he or

she would have received, unless the acquitee can carry

the burden of demonstrating an earlier recovery. The

courts accordingly perceive a situational difference be-

tween acquitees and commitees constitutionally suffi-

cient to justify keeping the burden of proof on the former

but not the latter. See Franklin, supra at 188, 496 P.2d

at 476, 101 Cal. Rptr. at 560 (acquitees are an “excep-

tional class”) ; Chase, supra at 138 (same).

After reviewing numerous cases, we conclude that the

courts typically mix evidentiary and punitive rationales

in justifying less comprehensive review of acquitees at

“release hearings” than is afforded civil commitees at

such proceedings.” In view of this precedent, we must

agree that appellant’s willingness to assume the constitu-

tional validity of § 24-301(d) (2) cannot, in fairness, be

suid to imply « concession that all aspects of that proce-

Nee, e.9., Mills v, State, 256 A.2d 752, 755-57 (Del. 1969)

(upholding release hearing procedure using revular superior

court jury with burden of proof on acquitee ; both rationales) ;

State v. Allen, 166 N.W.2d 752, 758 (lowa 1969) (accuiices

may be required to prove regained sanity beyond a rexsonable

doubt: ovidentinry and punitive rationales); Stele v. Shack-

ford, 262 A.2d 359, 366 (Me. 1970) (same; punitive ration-

ale): Dantels vw. Superintend: nt, 34 Ma.App. 173, 180, 366

A.2d 1064, 1069 (Ct. Spee. App. 1976) (acquiteecs can be

required to carry burden of proof; evidentiary rationale);

Stale v. Taylor, 158 Mont. 323, 331, 491 P.2d 877, 881 (1971),

cerl. denied, 406 U.S. 978 (1972) (same; punitive rationale) ;

In ve Lee, 46 App. Div.2d 999, 1000, 362 N.Y.S.2d 635. 636-37

(1974) (district atlorney may participate in acquitce’s re-

lease hearing; punitive rationale).

{179}

dure are justified solely on evidentiary (and thus non-

punitive) grounds.”®

Ill.

Now that we are confronted by the possibility that the

criminal commitment procedure can, to some extent, be

punitive yet constitutional, we must reconsider the na-

ture of a § 24-301(d) confinement. There are three pos-

sibilities, not two as we originally perceived: (1) it is

wholly rehabilitative (i.e., not at all punitive), in which

case an acquitee can be committed indefinitely, without

regard to a hypothetical maximum prison sentence, sub-

ject only to the periodic review afforded civil] commitees,

see Jones, supra at 190; or, at the other extreme, (2)

it is inherently punitive, in which case the release hear-

ing procedure itself is unconstitutional, see Baxstrom,

supra; Humphrey v. Cady, 405 U.S. 504, 510-11 (1972) ;

Brown, supra at 409-10, 478 F.2d at 613-14 (Wright, J.,

dissenting); Waile, supra at 285-86, 475 F.2d at 396-

97;"' or, as appellant urges, (3) it is partially (but per-

haps justifiably) punitive at the outset, in which case

an acquitee, although lawfully confined for awhile, argu-

ably must be released (or civilly committed) no later than

the end of the maximum prison term for which the ac-

’” Accordingly, we retract the statement in our first opinion

that “appellant must be presumed to ayree that this con-

finement is not based, even in part, on punitive considerations ;

otherwise it would be unconstitutional under Baxstrom, supra;

see Humphrey v. Cady... .” Jones, supra at 189.

In this case, an acquitee would be entitled to release or

to civil commitment proceedings promptly after the insanity

acquittal. Sec Bolton, supra.

[180]

quitee could have been sentenced."* Sce Brown, supra at

408, 478 F.2d at 612.

Assuming the constitutional validity of § 24-301 (d),

ve must choose between the first and third alternatives

to decide the issue raised by appellant.” If we conclude—

as previously assumed—that § 24-301(d) is wholly re-

habilitative, then our first opinion and order will stand.

If, however, we conclude that £ 24-301(d) in some re-

spects is punitive, then appellant’s argument may have

merit,

Confronting the question that we dealt with only hypo-

thetically in our first opinion, we reject the view that

an aequitee’s mental ilmess and dangerousness at the

time of the offense are consistently such powerful evi-

dence of iness and dangerousness later (7.¢., at the time

of the “release hearing”) that they raise a presumption

of continuing insanity in every ease. See Brown, supra

We understand appellant to base his argument on the

hypothetical maximum prison term to which the acquilce

himself could be sentenced, not simply on the maximum

sentenee for the particular crime involved, without regard

‘o the aequitee’s own criminal history. We do not, however,

lve that envestion here.

‘ant declines to question the constitutionality of

100d) one we aeree that this court should not issue an

viiivisery opinion on that subject. On the other hand, appellant

} nid that assuming the validity of § 24-301(d), he should

not he held—-as in our first opinion—to assume that it in no

respect is punitive, since there is respectable legal! precedent

for the view that release-hearing procedures can be constitu-

tional while partially punitive. We agree. Therefore, if, after

exnmining & 24-801 (4), we conclude that it 7s, to some extent,

punitive, we properly can refrain from evaluating its cons'i-

iutionatity and, instead, can make a narrower analysis deter-

mininey whether such punitive procedures can be imposed

for an indefinite period

[181]

at 409-10, 478 F.2d at 613-14 (Wright, J., dissenting) ;

Bolton, supra at 8, 395 F.2d at 649. Thus, contrary to

the assumption underlying our first opinion, we conclude

that the difference between criminal and civi] commitment

procedures ** cannot be justified on purely evidentiary

grounds. It follows, therefore, that if society legitimately

can place a greater burden on the acquitee to avoid con-

tinued confinement than it places on a prospective civil

commitee, that burden must be justified by the public’s

interest in greater protection than it would be likely to

receive by subjecting acquitees to the civil commitment

process. Furthermore, because § 24-301(d) is premised,

in part, on an earlier criminal offense—a confinement

which might not have occurred if the government had the

burden of proof before a new jury—this release-hearing

procedure is, to some extent, “punitive.”

The public’s interest in safety is, of course, limited by

the acquitee’s right to equal protection. Assuming the

best case for the constitutionality of § 24-301(d), ap-

pellant argues that its partially punitive charscter at

least dictates, as a matter of equal protection vis-a-vis

civil commitees, that acquitees be released (for civilly

committed) no later than the end of the maximum prison

term they could have received if criminally

y convicted.

We agree.

According to Barstrom, supra at 111, “[ejqual pro-

tection does not require that all persons be dealt with

identically, but it does require that a distinction made

have some relevance to the purpose for which the classi-

ficution is made” (citation omitted). Accord, Lolton,

supra at 10, 395 F.2d at 651. On the basis of the par-

tially punitive rationale for the criminal commitment

™ Compure D.C. Code 1972, § 24-301(d) with § 21-545(b).

[182]

scheme set forth earlier, see text and cases at note 9

supra, the criminal commitment scheme might survive

eyuial protection scrutiny under Baxstrom, supra, even

though the procedure for confining civil] commitees pro-

vides greater protection for the individual at the outset

(the right to a jury and burden of proof on the gov-

ernment). We agree with appellant, however, that there

is no basis for confining an acquitee under § 24-301(d)

beyond the length of the hypothetical maximum prison

term, since that term marks the end of society’s claim

on that individual for any kind of punishment. Any

longer confinement must depend, constitutionally, on a

de nove civil commitment. See Humphrey, supra at 510-

11: Barstgom, supra at 110-11; Brown, supra at 408,

478 F.2d at 612."

IV.

Accordingly, we hold that because the maximum pos-

sible prison term for which appellant Michael Jones could

have been incarcerated has expired, he is entitled to re-

lease from St. Elizabeths Hospital, subject to the gov-

ernment’s right to seek civil commitment. The opinion

and judgment heretofore filed are therefore vacated. The

government shall have 30 days from the date of the

mundate issued pursuant to today’s order in this case to

jnitinfe civil commitment proceedings against appellant.

Once those proceedings have been initiated, he shall |

lt is important to stress that if the § 24-301(d) release

hearing is valid, as assumed, despite a partially punitive

underpinning, our holding permits confinement under § 24-

301(d) to the end of the maximum applicable prison term, n

mutter how long that may be. We perceive no basis for th

Brown court’s view that the punitive justification for § 24-

301(d) may expire short of the maximum rentence (and

“would lly not exceed five years”). Jd. at 408, 478 F.2d

ai 612

183}

i )

confined, if at all, in accordance with Title 21 of the

District of Columbia Code. In the event that appellant

does not become the subject of civil commitment proceed-

ings during this 30-day period, he shail be given his

freedom.

So ordered.

MACK, Associate Judge, concurring: I concurred in

our first opinion, 396 A.2d 183 (1978), because I did not

construe that analysis as holding that the criminal com-

mitment procedures of D.C. Code 1973, § 24-301 would

pass muster as against a challenge on equal protection

or procedural due process grounds, citing Jackson v. In-

diana, 406 U.S. 715 (1972). I concur in the instant

holding because the serious reservations that I held about

the constitutionality of such procedures are erased by our

choosing to mandate that an acquitee must be released

from incarceration at the expiration of the maximum

period of possible imprisonment for the criminal charge,

subject to the government’s right to seek civil commit-

ment.

KELLY, Associate Judge, dissenting: I would adhere

to our original decision to affirm the order on appeal

(Jones v. United States, D.C.App., 396 A.2d 183 (1978) )

and so dissent from this opinion on rehearing.

[184]

RECEIVED

AUG 6&

RECEIVED 1981

OFFICE OF THE CLERK

SUPREME COURT, US

AUG 6 198 — J

OFFICE OF THE CLERK

SUPREME COURT, US. :

DISTRICT OF COLUMBIA COURT OF APPEALS

Dissenling opinion by Associate Judge FERREN, with

whom Chief Judge NEWMAN and Associale Judye

MACK join, at p. 25.

¥;

KELLY, Associate Judge: Appellant Michael A. Jones

is a mental patient at St. Elizabeths Hospital where he

has been committed since March 1976, pursuant to D.C.

Code 1973, § 24-301(d).' In February 1977, he appealed

' Subsection 24-301(d), which controls the commitment of

persons found not ;ruilly by reason of insanity (acquitices),

reads:

(d)(1)-]f any person tried upon an indictment or

information for an offense raises the defense of insanity

umd is acquitted solely on the ground that he was insane

al the time of its commission, he shall be committed to a

hospital for the mentally il) until such time as he is

eligible for release pursuant to this subsection er sub-

section (e).

(2) A_ person confined pursuant to paragraph (1)

shall have a hearing, unless waived, within 50 days of

his confinement to determine whether he 1s entitled to

release from custody. At the conclusion of the criminal

aelion referred to in paragraph (1) of this subsection,

the court shall provide such person with representation

by counsel—

(A) in the case of a person who is eligible to have

counsel appointed by the court, by continuing any

appointment of counsel made to represent such per-

son in the prior criminal action or by appointing

new counsel ; on

(B) in the case of a person who is not eligible to

have counsel appointed by the court, by assuring

representation by retained counsel.

If the hearing is not waived, the court shall cause notice

of the hearing to be served upon the person, his coun-

sel, and the prosecuting attorney and hold the hearing.

Within ten days from the date the hearing war beeun,

the court shall determine the issues and make findings

{1178}

from an order by Judge Eugene N. Hamilton denying his

request for immediate release from St. Elizabeths or in

the alternative for civil commitment in accordance with

the procedures set forth in D.C. Code 1973, § 21-545(b) ?

basing his challenge to his continued confinement on the

argument that detention beyond the maximum period

for which he could have been imprisoned for the offense of

which he was acquitted denies him equal protection of the

laws.

Our first panel opinion, which relied on an express

abstention from a challenge to his initial commitment, held

of fact and conclusions of law with respect thereto. The

person confined shall have the burden of proof. If the

court finds by a preponderance of the evidence that the

person corfincd is entitled to his release from custody,

either conditional or unconditional, the court shall enter

such order as may appear appropriate.

(3) An appeal may be taken from an order entered

under paragraph (2) to the court having jurisdiction to

review final judgments of the court entering the order.

* Subsection 21-545(b), concerning involuntary civil com-

mitment, reads, in pertinent part:

If the court or jury finds that the person is mentally

ill and, because of that illness, is likely to injure himsclf

or other persons if allowed to remain at liberty, the court

may order his hospitalization for an indeterminate per-

jod, or order any other alternative course of treatment

which the court believes will be in the best interests of

the person or of the public. The Commission, or a mem-

ber thereof, shall be competent and compellable witnesses

at a hearing or jury trial held pursuant to this chapter.

The jury to be used in any case where a jury trial is

demanded under this chapter shall be impaneled, upon

order of the court, from the jurors in attendance upon

other branches of the court, who shall perform the

services in addition to and as part of their duties in the

court.

(1179]

a Te ch eee

that appellant had no right to the relief requested. Joucs

v. United States, D.C.App., 396 A.2d 183 (1978). Ap-

pellant petitioned for rehearing or rehearing en banc, ob-

jecting to the pancl’s decision as unfairly based on his

abstention from a challenge to the initial commitment un-

der D.C. Code 1973, § 24-301(d)(2). Rehearing was

thereafter granted and a second opinion issued holding

that appellant was entilled to immediate release unless the

government civilly committed him pursuant to D.C. Code

1973, § 21-545(b) because the “release hearing procedure

is to sume extent ‘punitlive’” and it would be a denial of

equal protection to confine appellant under criminal com-

mitment procedures beyond his hypothetical maximum

prison sentence. Jones v, United States, D.C.App., 41)

A.2d 624 (1980). The government petitioned for rehear-

ing en bane, disputing the determination that the District

of Columbia commitment scheme for insane criminals is

punitive. Its petition was granted and the case was re-

heard by the en bane court. Since our previous opinions

were vacated, we consider anew appellant’s equal protec-

tion claim and hold that he is not entitled to automatic re-

lense trom St. Klizabeths upon the expiration of his hypo-

thetical maximum prison sentence unless civil commit-

ment proceedings are instituted by the government.

Appellant’s commitment resulted from a September

1975, charge of attempted petit larceny. He was first ad-

mitted to St. Elizabeths beeause of a court-ordered coin-

petency examination.” On March 12, 1976, on stipulated

facts as to the crime and as to insanity, appellant was ac-

quilted by the court of the charge by reason of insanity.

*See D.C. Code 19738, § 24-301(a). The psychologist’s re-

porl stated that appellant was competent to stand trial, but

that he had “signs and symptoms of a severe mental dis-

order, including anditory hallucinations” and that he should

be hospitalized at St. Elizabeths for treatment.

11180)

On May 25, 1976, Judge James A. Washington held a “50-

day release hearing” pursuant to D.C. Code 1973, § 24-

301(d) (2)* and continued appellant’s confinement at St.

Elizabeths because of his failure to prove by a preponder-

ance of the evidence that he was no longer mentally ill or

dangerous to himself and others.’ A further hearing was

sel for November 29, 1976. On that date, Judge Hamilton

held a second hearing during which appellant raised the

urgument that his confinement under § 301(d) could not

extend beyond his hypothetical maximum prison sentence

and that he was therefore entitled to release. The court

ordered the government to show cause why appellant

should not be released or civilly committed under D.C.

Code 1973, § 21-545(b). After a hearing in February

of 1977, Judge Hamilton denied appellant’s motion for im-

mediate release or in the alternative, civil commitment,

and continued his indefinite confinement at St. Eliza-

beths. A timely appeal from this order was filed on Feb-

ruary 28, 1977.°

* See note 1 supra.

*In an April 23, 1976 letter, the Superintendent of St.

Elizabeths reported that Jones was suffering from schizo-

phrenia, paranoid type, and was on medication. The letter

also slated that “Mr. Jones is in need of further hospitaliza-

tion, and by virtue of his mental illness, he would be a danger

to himself and to others if released inte the community at

this time.”

“A subsequent motion for unconditional release under

§ 301 (k) was denied in March of 1977. Three months later,

however, appellant was granted conditional release on terms

recommended by St. Elizabeths’ stall, allowing daytime and

overnight visits into the community. He was also admitted

into the civil division of the hospital, though as a result of

disruptive behavior, he was retransferred to the forensic

division.

[1181]

Before analyzing appellant’s equal protection claim,

we deem it necessary to reject any suggestion that con-

finement pursuant to subsection 301(d) is punitive in

nature. We recognize that appéflant never explicitly made

such an assertion, but that implication underlies his argu-

ment (and certainly our prior opinions) that the length

of the prison sentence which an acquitlee might have re-

ceived delermines when he is entitled to release or civil

commitment under ‘Title 24 of the D.C. Code. We con-

clude that there is no basis for finding § 301(d) punitive

in any respect.

This court’s decision in Bethea v. United States, T.C.

App., 365 4.2d 64, 90 (1976), cert. denied, 433 U.S. 911

(1977), noted that “Congress struck a careful balance

between the interests of the individual and those of the

community,” in the enactment of the District of Columbia

commitment scheme for persons acquitted by reason of

insanity. The purpose behind this careful balance was

explained in Hough v. United States, 106 U.S.App.D.C.

192, 195, 271 V.2d° 458, 461 (1959), when Judge Bazelon

staled that

|T}he basic policy underlying the statute .. .

us we read the legislative history, is to provide

treatment and cure for the individual in a man-

ner which affords reasonable assurance for the

publie safety. ...

More recent cases reiicrate the dual purpose of § 301(d)

as first, the treatment and recovery of the patient, and

second, the protection of society and the patient. Collins

v. Cameron, 126 U.S.App.D.C. 306, 308, 377 F.2d 945,

947 (1967); Overholser v. O’Beirne, 112 U.S.App.D.C.

267, 269, 302 F.2d 852, 854 (1961); Ragsdale v. Over-

holser, 108 U.S.App.D.C. 308, 312, 281 F.2d 943, 947

(1960). The 1970 amendments to § 301(d), enacted in

[1182]

“-

response to the decision in Bolton v. Harris, 130 U.S.App.

D.C. 1, 395 F.2d 642 (1968),’ have not altered its origi-

nal purpose. See United States v. Jackson, 179 U.S.App.

D.C. 375, 381, 553 F.2d 109, 115 (1976). Indeed, the

Bolton decision inescapably leads to the conclusion of non-

punitiveness. This is because Bolton’s requirement of a

separate judicial hearing before indeterminate commit-

ment was intended to undo the punitive aspects attending

the formerly automatic connection between the determi-

nation of guilt and the commitment of a defendant who

pleaded insanity.

The exclusively remedial and protective goals of the

statute demonstrate that a punitive rationale has no part

in the commitment of persons acquitted by reason of in-

sunity. We agree that

[ijn the light of [the legislative} purpose [of

§ 301], we must reject the District Court’s sug-

gestion that appellant is a “prisoner.” Nothing

in the history of the statute—and nothing in its

language—indicates that an individual commit-

ted to a mental hospital after acquittal of a

crime by reason of insanity is other than a pa-

tient. The individual is confined in the hospital

for the purpose of treatment, not punishment;

and the length of confinement is governed solely

by considerations of his condition and the public

safety. Any preoccupation by the District Court

with the need of punishment for crime is out of

place in dealing with an individual who has been

™ Bolton held that acquittees are entitled to a hearing

“substantially similar” to the hearings afforded civil com-

mitees before they are indeterminately confined. The impli-

cations of this holding are more fully discussed below.

11183]

a a a ae

nequitted of the crime charged. [Hough v.

United States, supra at 196, 271 F.2d at 462.)

Society may not excuse a defendant’s criminal behavior

becunse of his insanity and at the same time punish him

for invoking an insanity defense. This would nullify that

defense, contrary to express legislative intent, sce D.C.

Code 1975, § 24-301(j) (establishing procedures for

pleading insanity), and raise serious constitutional issues.

The regulatery nature of $301(d) is also evidenced

by the non-adversarial character of commitment decisions.

All parties, including the government, the hospital" and

the acquittee assist in presenting the facts relevant to a

determination of the proper conditions and treatment for

the insanity acquittee. See United States v. Ecker, 177

U.S.App.D.C. 31, 45, 543 F.2d 178, 192 (1976), cert.

denied, 429 U.S. 1063 (1977); Bolton v. Harris, supra

at 12 v.64, 895 F.2d at 563 n.64; Lake v. Cameron, 124

U.S.App.D.C. 264, 268, 364 F.2d 657, 661 (1966) (en

bane).

Furthermore, plain reason compels rejection of appel-

lant’s reliance on his hypothetical maximum prison term

as artificial and meaningless. Statutory maximum sen-

tences have no relationship to the purposes of mental care

und treatment. They are intended rather, to set the outer

boundaries of lawful punishment for persons found crim-

inally responsible for speeified offenses. Not even con-

victed criminals are automatically sentenced to the maxi-

*In Divrou wv. Jacobs, 138 U.S.App.D.C. 319, 330, 427 F.2d

589, 600 (1970), the circuit court in reversing the dismissal

of an insanity acquittee’s habeas corpus petition, stated that

“Saint Klizabeths bears a special responsibility for assuring:

that information regarding the patient’s condition is fully

presented te the District Court, and that the court under-

standingly . ....cers the information presented.”

[1184]

mum applicable term of incarceration. Subsection 301

(d) commitments are neither expressly nor impliedly

related to statutory maximum sentences. To the con-

trary, § 301(d) contemplates an indeterminate period of

confinement and treatment, depending on when the pa-

tient has recovered his sanity or no longer poses a danger

to himself or others.” As Dixon v. Jacobs, 138 U.S.App.

D.C. 319, 325, 427 F.2d 589, 595 (1970) explains:

Confinement of the mentally ill rests upon a

basis substantially different from that which

supports confinement of those convicted of

crime. In the latter case, with rare exceptions,

the continuing validity of confinement rests

solely on the validity of the initial commit-

ment. Confinement of the mentally ill, however,

depends not only upon the validity of the initial

commitment but also upon the continuing status

of the patient. Specifically, under our statutes,

he must be released from the hospital if he is

no longer mentally ill; if, although he remains

mentally ill, he is no longer “likely to injure

himself or other persons”; or, should the patient

so desire, if a course of outpatient treatment

can be fashioned that will adequately protect

the interests both of the patient and the public.

| Footnotes omitted. |

* Thus it would be more accurate to say, and certainly more

analytically useful, that appellant is actually challenging

the indeterminate length of his commitment at St. Elizabeths,

rather than only his “continued” confinement there. Equal

protection, if violated at all, would be just as well put into

question at the inception of the commitment since it effec-

tively means an indefinite period of confinement.

[1185]

The notion that the duration of an acquittce’s hos-

pitalization can be established by statute or court order

ignores the most basic precepts of medicine and psy-

chiatry. Unfortunately, the pregent state of the art

makes it generally impossible to predict either the time

required to rehabilitate a mental patient, if at all possi-

ble, or at what point he will cease to be a danger to him-

self or others. Only ongoing medical and psychiatric

evaluation offer a realistic hope of such prognosis.”

Therefore, reference to either a hypothetical maximum

prison sentence, or even to a judicially limited commit-

ment term would completely refute the statutory pur-

pose of §301(d) and would frustrate any attempt at

treating; and rehabilitating mental patients who happen

to have been nequitted of crimes by reason of insanity.

Our conclusion that § 301(d) is not punitive is sup-

ported hy our recent decision in United States v. Edwards,

D.C.App., A.2d (Nos. 80-294 & 80-401, May 8,

1981) (en bane), where the contention that incarceration

inevitably ¢ * ‘tes punishment was rejected. Though

commitment of acquitlees is in no sense incarceration,

the principle that the penal character of a statute de-

pends on its underlying nature and whether it is rea-

sonably supported by a legitimate state interest, applies

“ See Addington v. Texas, 441 U.S. 418, 430-31 (1979),

und authorities cited therein, holding that the lack of cer-

tainty and the fallibility of psychiatric diagnosis make proof

of insanity by clear and convincing evidence constitutionally

suflicient. Addington also recoynized that “fi]n a civil com-

mitment state power is not exercised in a punitive sense.”

Id. at 428. While Chief Justice Burger’s opinion did not

deal with commitment of persons found not guilty by reason

of insanity, a §301(d) commitment is actually a civil, not a

criminal proceeding and Addinglon’s reasoning should apply

with equal force lo commitment of acquittees.

[1186]

+ zi

equally to the analysis of commitment statutes."" There

is no evidence that the District of Columbia statutory

scheme for commitment of insane criminals is anything

but a regulatory, prophylactic statute, based on a legiti-

mate governmental interest in protecting society and

rehabilitating mental patients. Nor is § 301(d) rendered

penal by the fact that it is predicated on the commission

of a crime. Evidence of crime is only one of the elements

triggering § 301(d) commitment, the other element being

"' See Bell v. Wolfish, 441 U.S. 520, 537-38 (1979). Factors

relevant to the determination of whether a statute is punitive

are:

“Whether the sanction involves an aflirmative disability

or restraint, whether it has historically been regarded as

a punishment, whether it comes into play only on a find-

ing of scienter, whether its operation will promote the

traditional aims of punishment—tretribution and deter-

rence, whether the behavior to which it applics is already

\3 a crime, whether an alternative purpose to which it may

rationally be connected is assignable for it, and whether

it appears excessive in relation to the alternative pur-

pose assigned are all relevant to the inquiry, and may

often point in differing directions.” [/d. at 537-38 (quot-

ing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69

(1963) ).]

The Bell case also noted that

A court must decide whether the disability is imposed

for the purpose of punishment or whether it is but an

incident of some other legitimate government puwr-

pose .... Absent a showing of an expressed intent to

punish on the part of detention facility officials, that

determination generally will turn on “whether an alter-

native purpose to which [the restriction] may rationally

be connected is assignable for it, and whether it appears

excessive in relation to the alternative purpose assigned

{to it}.” [Jd. at 638 (quoting Kennedy v. Mendoza-

Martinez, supra at 168-69, and citing Flemming v.

Nestor, 363 U.S. 603, 613-17 (1960)) (emphasis added) .]}

[1187]

proof of insanity by a preponderance of the evidence.

Since the crime is relevant only insofar as it indicates

danyerousness, not evil or criminal responsibility, the

presumption of continuing dangerougness, which is re-

buttable by the acquittec, is both redsonable and valid.

Because we have no evidence in the record that the

conditions of appellant's confinement are punitive or that

his particular commitment was based on punitive con-

siderations, we must conclude that appellant’s detention

is grounded or the legitimate non-punitive interests of

the District of Voiumbia.

Appellant challenges his confinement under § 301(d)

as violative of equal protection of the laws. The due

process guarantee of the Fifth Amendment of the United

States Constitution, which is directly applicable to the

District of Columbia, encompasses the right to equal pro-

lection. Bolling v. Sharpe, 347 U.S. 497 (1954) ; Matter

of C.W.M., D.C.App., 407 A.2d 617, 625 (1979).

In the absence of specific objections to conditions of

confinement or claims of inadequate or discriminatory

treatment," the validity of appellant’s equal protection

claim depends on whether the differences between the

present §301(d) commitment scheme and the involun-

tury commitment scheme under § 545(b) of Title 24 are

justifiable by reason of the situational differences be-

tween acyuittees and commitees.

Our analysis begins with the Supreme Court case of

Raystrom v. Herold, 383 U.S. 107 (1966), which held

that equal protection requires that a prisoner to be

"The right to treatment for mental illness is recognized

in Tribby v. Cameron, 126 U.S.App.D.C. 327, 379 F.2d 104

(1967), and Rouse v. Cameron, 125 U.S.App.D.C. 366, 373

F.2d 451 (1966).

11188]

transferred to a mental hospital be given the same pro-

cedural protections as those afforded other persons sub-

ject to involuntary civil commitment. Two years later,

the United States Court of Appeals for the District of

Columbia found that Bazstrom’s equal protection hold-

ing, as well as the due process guarantees of Specht v.

Patterson, 386 U.S. 605 (1967), require that “persons

found not guilty by reason of insanity .. . be given a

judicial hearing with procedures substantially similar to

those in civil commitment proceedings.” Bolton v. Harris,

supra at 10, 395 F.2d at 651 (footnote omitted). Bolton

was expressly premised on the weakness of the proof of

a defendant’s insanity at the time of the offense; when

Bolton was decided, the standard for acquittal was

whether there was a reasonable doubt regarding past

sanity. Jd. at 8, 395 F.2d at 649. The 1970 amendments

to § 301 have significantly narrowed this evidentiary gap

by requiring that the defendant affirmatively prove his

exculpating insanity to the jury by a preponderance of

the evidence at the trial for his criminal offense. D.C.

Code 1973, § 24-301(j). The judicial hearing required

by Bolton was codified in £ 301(d)’s 50-day release hear-

ing provision, notwithstanding the changed nature of the

insanity defense.

The equal protection test suggested by these cases is

that the procedures and standards of different commit-

™ Specht held that sentencing pursuant to Colorado's Sex

Offenders Act was criminal punishment and violated due

process because it made a conviction for a sex offense the

hasis of indeterminate sentencing without affording the de-

fendant a hearing on the issue of his mental illness, danger-

ousness or recidivism. ?

' Subsection 301(j)’s shift in the burden of proof was up-

held against constitutional atiack in Bethea, supra, and

United States v. Greene, 160 U.S.App.D.C. 21, 489 F.2d 1145

(1973), cert. denied, 419 U.S. 977 (1974).

{1189}

ment schemes be relevant to the classification and that

any differences nut be substantial. We therefore agree

with the statement in United States v. Jackson, supra

at 386, 553 F.2d at 120, that §301(d) “must be up-

held if there is a rational basis for the scheme it cre-

ates.” Th court arrived at this conclusion by deter-

mining that neither Jackson v. Indiana, 406 U.S. 715

(1972) (indeterminate pretrial commitment procedures

found to violate equal protection), nor Baxstrom, supra,

held that strict scrutiny applies to procedures used for

the criminal commitment of mentally ill persons. In

reviewing the petitioner’s argument in Baxstrom, Chief

Justice Warren stated that “[e]qual protection does not

require that all persons be dealt with identically, but it

docs requirg that « distinction made have some relevance

to the purpose for which classification is made.” Baz-

strom, supra at 111. Bolton also recognized that “a rea-

sonable application |of the equal protection doctrine]

permits Subsection (d) to treat persons acquitted by rea-

son of insanity differently from civilly committed persons

to the extent that there are relevant differences between

those two groups.” Bollon, supra at 10, 395 F.2d at 651.

But substantial differences are prohibited under Bolton.

Id. Thus, a reasonable distinction between the two statu-

tory schemes would be one that is both relevant to the

government’s legitimate interests in the separate clas-

sification and not impermissibly substantial.

“ See also State v. Krol, 68 N.J. 236, ——, 344 A.2d 289,

298 (1975) (questioning the equal protection test applicable

to differences in commitment schemes required by Baxstrom,

supra, and Jackson v. Indiana, supra) and Novak, Realigning

the Standards of Review Under the tqual Protection Guar-

antecs—Drohibited, Neutral and Permissive Classifications,

62 Gro. lL. Rev. 1071, 1101-03 (1974) (suggesting that

Jackson v. Indiana, supra, and Humphrey v. Cady, 405 U.S.

504 (1972), were based on a “demonstrable rational basis”

test).

[1190]

Before reviewing the differences between § 24-301 (d) =

and § 21-545(b), it is important to note their similarities.

First, the substantive standard of commitment is iden-

tical under both statutes. The twofold proof requirement

of mental iliness and dangerousness vuries only in the

manner in which it is established." Second, both § 24-

301(d) (2) and § 21-545(b) provide for mandatory ju-

dicial hearings, with notice and assistance of counsel

(court-appointed if necessary). These common charac-

teristics constitute the essential due process rights as-

sociated with involuntary commitment. Sce Vitek v.

Jones, 445 U.S. 480 (1980) (recognizing a pris-

oner’s due process rights to a hearing before trans-

fer to a mental health facility) ;"" Specht v. Patterson,

’ The two-prong test is explicitly slated in § 21-545(b);

however, § 24-301(d) only refers to an acquittee’s entitlement

to release. But it is reasonable to assume that the same

ic] standard governs § 301(d) release hearings by reference to

§ 24-301(c), which states that entitlement to release, upon

hospital certification, depends on a showing that the acquittee

fs no longer mentally ill or dangerous.

'T Justice White approvingly listed the following procedures

ottiined by the Nebraska District Court as the minimum re-

quired before transfer of a prisoner to a mental hospital:

A. Written notice to the prisoner that a transfer to

a mental hospital is being considered ;

B. A hearing, sufficiently. after the notice to permit

the prisoner to prepare, at which disclosure to the pris-

oner.is made of the evidence being relied upon for the

transfer and at which an opportunity to be heard in per-

son and to present documentary evidence is given;

C. An opportunity at the hearing to present testi-

mony of witnesses by the defense and to confront and

cross-examine witnesses called by the state, except upon

a finding, not arbitrarily made, of good cause for not

— —_ ee

{1191}

a ee —-

supra.”* Thus with respect to important constitutional

protections the two statutes provide the same coverage.

As persuasively explained in our first panel opinion,

the differences between the two,procedures

can be justified by reference to situational dif-

ferences between the two groups immediately

prior to the respective hearings. The civil com-

mitment question, as to any potential committee,

is of first impression, whereas the “release hear-

ing” procedure for an acquitee presumably can

be somewhat abbreviated because of the pre-

dlictive value of the initial determinations of in-

sunity and dangerousness at the criminal trial.

(‘That predictive value rests on the defendant’s

own prior proof of his insanity by a perponder-

ance of the evidence—by a jury trial if he re-

permitting such presentation, confrontation, or cross-

examination ;

D. An independent decisionmaker;

E. A written statement by the factfinder as to the

evidence relied on and the reasons for transferring the

inmate;

lr. Availability of legal counsel, furnished by the

state, if the inmate is financially unable to furnish his

own; and

G. Effective and timely notice of all the foregoing

rights.” [Vitek v. Jones, supra at 494-95.]

"The Specht opinion held that

Due process . . . requires that [the defendant] be present

with counsel, have an opportunity to be heard, be con-

fronted with witnesses against him, have the right to

cross-examine, and to offer evidence of his own. And

there must be findings adequate to make meaningful

any appeal that is allowed. [/d. at 610.)

[1192]

quested it.) Whereas the § 24-545(b) hearing,

therefore, represents a de novo process, the § 24-

301(d) hearing is an updating process to de-

termine how present mental status compares

with earlier findings which had been urged by

the defendant himself. . . . In either case, the

only concern is a determination as to sanity and

dangerousness, with a view to rehabilitation.

Given these situational differences between ac-

quitees and potential commitees immediately

prior to the initial commitment determination,

the difference in hearing procedures is arguably

justified; there is no constitutional prohibition

against rational differences in the treatment of

differently situated persons. [Jones v. United

States, supra, 396 A.2d at 189.)

ie There appear to be three differences between § 24-301

(d) and § 21-545(b) commitments: (1) the availability

of jury trial, (2) the question of who carries the burden

of proof, and (3) the amount of proof required to justify

commitment." We review these distinctions individually

to ascertain whether they are permissibly relevant or im-

permissibly substantial under Bazxstrom and Bolton.

While the jury trial right available to commitees is

not similarly available to an acquittee in a 50-day re-

lease hearing, this difference is justified by the fact that

the acquittee has had a right to a jury determination of

' We do not compare the differences in post-commitment

procedures since they are not covered in these subsections

and appellant’s claim is based on the alleged invalidity of his

confinement under subsection 301(d).

[1193]

his sanity at the time of the offense.” Thus the acquit-

tec’s mental illness is initially established by affirmaiive

proof. Dangerousness is no less validly established by

proof that the defendant committed the criminal act, a

finding necessarily underlying any acquittal by reason

of insanity. See Bethea, supra at 93-95; Smothers v.

United State ‘*.App., 403 A.2d 306, 310 (1979). In

United States v. Ecker, supra at 48, 543 F.2d at 195,

the court stated that “[sJince 1958 this court has con-

sistently accepted the proposition that the dangerousness

demonstrated by the commission of a crime and acquittal

by reason of insanity constitutes a rational basis for the

disparity in release provisions governing acquittees and

commitees.” (Footnote omitted). Ecker also recognized

that some disparities in commitment proceedings are sim-

ilarly permissible, id. at 49-50, 543 F.2d at 196-97, and

explained that “{s]ubsection (d) patients are treated

differently from civil commitees because they are ‘an

exceptional class of people’ who have ‘already unhappily

manifested the reality of anti-social conduct.’” Jd. at

50, 543 I’.2d at 197 (footnotes omitted).

The fact that appellant’s mental illness and dangerous-

ness are not jury determined, but derived from a prior

jury finding, is not sign ficant since the continuation of

these attributes is a rational and permissible evidentiary

presumption.“". In Waite v. Jacobs, 154 U.S.App.D.C.

“ Appellant's waiver of the right to a jury at his criminal

trial does not affect our argument.

*' Jt is also noteworthy that the Criminal Jury Instruction

for the District of Columbia, No. 5.11 (3d ed. 1978), to be

given when a defense of insanity is pleaded, informs the jury

that the consequence of an acquittal by reason of insanity

will be automatic commitment of the defendant to St. Eliza-

beths, followed by a release hearing within 50 days. The

jury is also instructed that at this hearing the defendant

[1194]

281, 288-89, 475 F.2d 392, 399-400 (1973), the validity

of this presumption was recognized:

The rational justification for placing the bur-

den of proof on a commitee is that his mental

illness and dangerousness have previously been

convincingly established. In light of those es-

tablished facts, the law gives effect to a pre-

sumption of continuity of status. It comports

with normal perceptions of reality—and hence

is rational—to assume that, once a given status

is proven to exist, it continues to do so in the

absence of evidence showing the contrary to be

more likely than not.

In Waite, however, the presumption was not applicable

because unlike in the instant case, the appellant had

never been afforded a post-acquittal judicial hearing on

the question of his continued mental illness and dan-

e gerousness.

The availability of a jury trial under § 21-545(b) and

the absence of such a right at a § 24-301(d) hearing is

aiso an insubstantial difference because the findings of

mental illness and dangerousness are based on expert

testimony and are not matters uniquely within the prov-

ince of a jury of lay persons. In Addington v. Texas,

441 U.S. 418, 429 (1979), the Court explained that in

contrast to delinquency proceedings or criminal prosecu-

tions where “the basic issue is a straightforward factual

question—did the accused commit the act alleged,” the

factual questions in a civil commitment proceeding “rep-

resent only the beginning of the inquiry.” The Court

must prove to the court, by a preponderance of the evidence,

that he is entitled to release. This instruction was approved

in United States v. Brawner, 153 U.S.App.D.C. 1, 29-30, 471

F.2d 969, 997-98 (1972).

[1195]

continued: “Whether the individual is mentally ill and

dangerous to either himself or others and is in need of

confined therapy turns on the meaning of the facts which

must be interpreted by expert psychiatrists and psy-

chologists.” Jd. (emphasis in original). Thus, both judge

and juror are forced to rely on expert evidence in com-

mitment proceedings, significantly diminishing the im-

portance of their personal judgment, values and experi-

ence. In sum, becuuse (1) an acquittee has a right to a

jury determination of past insanity at his criminal trial;

(2) it is reasonable to presume the continuation of a

mental illness; and (3) a jury right in commitment pro-

ceedings is not as meaningful as it is in ordinary crimi-

nul cases, the absence of a jury right at a § 24-301 (d)

release hearing is not a substantial difference vis-i-vis

§ 21-545 (b) civil commitment,

The second distinction between the two commitment

procedures in the District of Columbia is the fact that

the government bears the burden of proof in a § 21-545

(hb) hearing, whereas in the 50-day release hearing, the

acquitlee must prove that he is no longer mentally ill

or dangerous. It is entirely rational for the District to

require an acquittee to prove his entitlement to release

where he ws the one to advocate the fact of his past

insanity. Aucomuatic § 301(d) commitment does not fol-

low an acquittal by reason of insanity when the question

of insanity is raised by the court or the prosecutor,

rather than the defendant. United States v. Wright, 167

U.S.App.D.C. 309, 511 F.2d 1311 (1975). As mentioned

above, the presumption that a mental condition continues

is a reasonable one and it is also reasonable to require

the person who raised the presumption to refute it by

aflirmative proof. Furthermore, whatever difference in

risk allocation there might be between the two statutes

as a result of who bears the burden of proof is mini-

{1196]

mized by the fact that when the acquittee bears the

burden, he need prove entitlement to release by only a

preponderance of the evidence, the lowest standard of

proof, whereas when the government bears the burden,

it must prove insanity and dangerousness by a higher

standard, namely that of clear and convincing evidence.

In re Nelson, D.C.App., 408 A.2d 1233 (1979).

Yet this disparity in the level of proof by which mental

illness and dangerousness are established under the two

procedures, when not regarded as a counter-balance to

the risk of non-persuasion, is another difference between

§ 24-301(d) and § 21-545(b) which must be justified as

rationally related to the situational differences between

acquittees and commitees. An acquittee’s past insanity

is proven by a preponderance of the evidence. His pres-

ent insanity is determined by his failure to rebut, by a

preponderance of the evidence, the presumption of con-

“s tinuing insanity. In contrast, a commitee’s detention is

~] based on clear and convincing evidence of mental illness

and dangerousness. In re Nelson, supra.“ The difference

between these two standards is justified by the fact that

Congress determined that a defendant raising an in-

sanity defense should not have to meet a higher burden

on such a relatively difficult issue. However, when the

District seeks to commit a person who is disputing the

*2 Since appellant has not challenged his initial commit-

ment, we view his argument as based on a present denial of

equal protection. We note, however, that in May 1976, when

appellant received his 50-day release hearing, the prevailing

standard was proof beyond a reasonable doubt, Jn re Hodges,

D.C.App., 325 A.2d 605 (1974) (overruled in Ju re Nelson,

supra). The greater disparity in proof between the two com-

mitment standards that existed when appellant was first

committed would not alter our conclusion that the difference

in the level of proof required is both rational and not so

substantial as to violate equal protection.

[1197]

fact of insanity or dangerousness, it is reasonable that

the risk of error be more heavily thrust upon the gov-

ernment. See Addington v. Texas, supra.

In Bolton, supra at 10 n.50, 396, F.2d at 651 n.50, and

in United States v. Brown, 155 U.S.App.D.C. 402, 478

F.2d 606 (1973), the circuit court also recognized that

a preponderance standard is enough to provide equal pro-

tection to acquittees.

Appellant hus argued that a series of later Supreme

Court and circuit court decisions based on an equal

protection theory support his entitlement to release as

of the expiration of his hypothetical maximum prison

term. However, the cases cited by appellant are all

distinguishable.

In Humphrey v. Cady, 405 U.S. 504 (1972), a defend-

ant convicted of contributing to the delinquency of a

minor was committed to a “sex deviate facili'y” in a

Wisconsin state prison in lieu of sentence. The statute

authorizing such commitment provided an initial term

equal to the maximum sentence the defendant could have

received, and five-year renewals based on a judge-made

finding of dangerousness. The statutory scheme in

lumphrey clearly included an express punitive element

evidenced by the limitation of the initial commitment

term to a period corresponding to that applicable to those

convicted.*

In the same term that it decided Humphrey, the Su-

preme Court held that indefinite confinement of a person

**We disagree with the interpretation of Humphrey in

Waite v. Jacobs, supra at 287, 475 F.2d at 398, that there is

little difference between the position of an acquittee and that

of a convicted defendant subject to the Wisconsin statute,

since we have determined that there is no punitive element

to § 301 (ad) commitments.

[1198]

charged with a crime and found incompetent to stand

trial violated equal protection because the criminal

charges were insufficient to prove either that the defend-

ant was dangerous or that he required treatment. Jack-

son v. Indiana, supra. Jackson is inapposite to the in-

stant case because Jackson was never tried for the crime

with which he was charged. See United States v. Ecker,

supra at 49-51, 543 F.2d at 196-98 (distinguishing Jack-

son for same reason in equal protection challenge to § 24-

301(e)). Since his continued detention was not based

on any other evidentiary predicate of dangerousness, it

therefore became invalid after “the reasonable period of

time necessary to determine whether there is a substan-

tial probability that [the person held] will attain [the]

capacity [to stand trial] in the foreseeable future.” Jd.

at 738.

Apnvellant’s reliance on the District of Columbia Cir-

cul cases of Waite v. Jacobs, supra, and United States

v. Brown, supra, is also unavailing.* Waite was ac-

quitted before the Bolton decision and therefore automa-

tically committed after a finding of not guilty by reason

of insanity without a judicial hearing on his continued

mental illness and dangerousness, which was subse-

quently required by Bolton and codified in § 24-301(d)

(2). Waite’s commitment was therefore invalid from the

beginning and arguably justifiable only as penal deten-

tion. As such, it was limited to the applicable maximum

sentence period.

Brown was a “post-Bolton, pre-1970 amendments” ac-

quittee who challenged the burden of proof at his post-

*4 These cases are not formally binding on this court be-

cause they were decided after February 1, 1971, the effective

date of the District of Columbia Court Reform and Criminal

Procedure Act of 1970. M.A.P. v. Ryan, D.C.App., 285 A.2d

310 (1971).

[1199]

acquittal judicial hearing. The Court of Appeals in

Brown upheld the preponderance standard applied, jus-

tifying the difference in the,Jevel of proof vis-i-vis the

level of proof required in § 21-545(b) proceedings by the

“meaningful elements of responsibility” which an ac-

quittee may have. Insofar as this reasoning suggests a

punitive element to § 301(d) we reject it as inconsistent

with our finding that the commitment scheme for ac-

quittees is not intended to attribute any guilt or imply

any social indebtedness in the excuse of a criminal of-

fense. Therefore, we need not follow the dicta in Brown

that “[t]}he extent of [the commitment] period | justified

by a post-Bolion, pre-1970 amendments commitment]

calls 1 - and discretion, would take into account, e¢..,

the nature of the crime (violent or not), nature of treat-

ment given and response of the person, would generally

not exceed five years, and should, of course, never exceed

the maximum sentence for the offense, less mandatory

release time.” Jd. at 408, 478 F.2d at 612. As pre-

viously explained, the only factors relevant to release

from a mental institution are the acquittee’s continued

dangerousness and his need for treatment. Judicial limi-

tutions on the duration of confinement based on hypo-

thetieal prison terms or other arbitrary determinations

of a maximum term of hospitalization, as suggested in

Brown, have no relation to the purpose of the statute.

In any event, the need for such limitations has been

obviated by the enactment of the 1970 amendments to

§ 24-301.

For the foregoing reasons, the trial court’s order deny-

ing appellant’s right to immediate release or, in the al-

ternative, civil commitment pursuant to D.C. Code 1973,

§$ 21-545 (b) is

Affirmed.

{1200}

ee ee ee ee

FERREN, Associate Judge, with whom NEWMAN, Chief

Judge, and MACK, Associate Judge, join, dissenting: I

continue to subscribe to our division opinion on rehearing,

411 A.2d 624 (1980), vacating 396 A.2d 183 (1978).

Under the civil commitment process, D.C. Code 1973,

$§ 21-541 to -545, the government has the burden of

proving a person is mentally ill and dangerous to self or

others—and proving it to a jury if the potential com-

mitee so demands. Id. § 21-544. In contrast, under the

“insane criminal” commitment process, D.C. Code 1973,

§§ 24-301 to -303, a defendant acquitted by reason of

insanity has the burden of proving he or she no longer is

mentally ill or dangerous—without the right to a jury.

Id. § 24-801 (d) (2).

Our colleagues in the majority conclude that these dif-

ty ferences in treatment of two classes of institutionalized

persons—commitees and acquitees—do not violate the

acquitee’s constitutional right to equal protection of the

laws. In response to the allegation that the procedural

shortcuts in § 24-301 reflect a punitive purpose, in con-

trast with a wholly therapeutic purpose underlying the

civil commitment process, the majority concludes “that

there is no basis for finding § 301(d) punitive in any

respect.” Ante at 6.'

'The majority maintains that the lesser protections in

§ 24-301—burden of proof on the acquitee, without right to

jury trial—do not alter its equivalence to §§ 21-544 and

-645, for the acquitee already has had a right to jury trial on

the conduct manifesting insanity, and the shift in burden of

proof is justified by a valid evidentiary presumption that the

acquitee’s insanity at the time of the offense—which he

himself asserted—continues to the time of the release hear-

[1201]

I do not understand the majority to disagree with the

proposition that if § 24-301(d) imposes punishment in

any respect, the analysis in our division opinion is con-

stitutionally sound.* It would follow that, “because the

ing. That hearing, therefore, unlike a civil] commitment pro-

ceeding, is a procedure to update, not initiate, the inquiry.

In our division opinion on rehearing we rejected that

analysis. We noted that the presumption of continuing in-

sanity is questionable, spanning as it does months or even

years between the time of the offense and the time of the

release hearing. Furthermore, we saw that the courts

analyzing criminal and civil commitment schemes in other

jurisdictions “typically mix evidentiary and punitive ration-

ales in justifying less comprehensive review of acquitees at

‘release hegrings’ than is afforded civil commitees at such

proceedings.” 411 A.2d at 628-29 (footnote omitted). Dif-

ferences such as a shift in the burden of proof and with-

drawal of the right to a jury are commonly justified, in part,

“by the public's interest in greater protection than it would

be likely to receive by subjecting acquitees to the civil com-

mitment process.” Jd. at 630. We concluded, therefore, that

“the difference[s] between criminal and civil commitment

procedures cannot be justified on purely evidentiary grounds.”

Id.

2 In our division opinion on rehearing, we summarized our

* analysis:

Assuming the best case for the constitutionality of § 24-

301 (d), appellant argues that its partially punitive char-

acter at least dictates, as a matter of equal protection

vis-a-vis civil commitees, that acquitees be released (or

civilly committed) no laler than the end of the maximum

prison term they would have received if criminally con-

victed. We agree.

According to Buextrom [v. Herold, 383 U.S. 107, 111

(1966)], “fe]qual protection does not require that all

persons be dealt with identically, but it does require that

a distinction made have some relevance to the purpose

for which the classification is made” (citation omitted).

Accord, Bolton [v. Harris, 130 U.S.App.D.C. 1, 10, 395

[1202]

maximum possible prison term for which appellant Mi-

chael Jones could have been incarcerated has expired, he

is entitled to release from St. Elizabeths Hospital, sub-

ject to the government’s right to seek civil commitment.”

411 A.2d at 630.

I therefore propose to discuss in greater detail the de-

terminative issue: whether § 24-301(d) is, to some ex-

tent, punitive.

Il.

The Supreme Court has identified several factors for

use in determining whether a statute is punitive. A court

first should look for “objective manifestations ef congres-

sional purpose.” Kennedy v. Mendoza-Martinez, 372 U.S.

144, 169 (1963). Accord, Bell v. Wolfish, 441 U.S. 520,

538 (1979). Where it is not clear on the face of the

statute whether Congress had a punitive intent, a court

. must consider a variety of other factors:

F.2d 642, 651 (1968) ]. On the basis of the partially puni-

tive rationale for the criminal commitment scheme sct

forth earlier, see text and cases at note 9 supra, the

criminal commitment scheme might survive equal pro-

tection scrutiny under Barstrom, supra, even though the

procedure for cenfining civil commitees provides greater

protection for the individual at the outset (the right to

a jury and burden of proof on the government). We

. agree with appellant, however, that there is no basis for

confining an acquitee under § 24-301(d) beyond the

length of the hypothetical maximum prison term, since

that term marks the end of society’s claim on that in-

dividual for any kind of punishment. Any longer con-

finement must depend, constitutionally, on a de novo

civil commitment. See Humphrey [v. Cady, 405 U.S. 504,

510-11 (1972)]; Barstrom[, supra at 110-11]; [United

States v. Brown, 155 U.S.App.D.C. 402, 408, 478 F.2d

606, 612 (1973)].

411 A.2d at 630 (footnote omitted).

[1203]

Whether the sanction involves an affirmative

disability or restraint, whether it has historic-

ally been regarded as a punishment, whether it

comes into play only on,a finding of scienter,

whether its operation will promote the traditional

aims of punishment—retribution and deterrence,

whether the behavior to which it applies is al-

ready a crime, whether an alternative purpose

to which it may rationally be connected is as-

signable for it, and whether it appears excessive

in relation to the alternative purpose assigned

are all relevant to the inquiry, and may often

point in differing directions. [Kennedy, supra

at 168-69 (footnotes omitted) .]

Accord, Bell, supra at 537-38. In the present case, we

confront a statute for which Congress clearly had a

punitive purpose.

A. The Previous Statute and Judicial Construction

Analysis begins with the previous statute. See, Keun-

nedy, supra at 170. Under D.C. Code 1967, § 24-301 (1),

u defendant who successfully interposed the insanity de-

fense was committed automatically—and indefinitely—to

a mental institution. However, in Bolton v. Harris, 130

U.S.App.D.C. 1, 395 F.2d 642 (1968), the United States

Court of Appeals for the District of Columbia Circuit

held that automatic commitment of acquitees was uncon-

stitutional—a denial of equal protection vis-a-vis com-

mitees. The court accordingly required that, upon a

finding of not guilty by reason of insanity, an acquitee

was constitutionally entitled to the equivalent of a civil

commit.aent proceeding, which came to be known as

the “Bolton hearing.” * Five years later, in United States

*In reaching this result, the court relied on Baxstrom v.

Herold, 383 U.S. 107 (1966), and Specht v. Patterson, 386

[1204]

v. Brown, 155 U.S.App.D.C. 402, 408, 478 F.2d 606, 612

(1978), the court held that even after a “Bolton” hearing

the disparities of treatment were such that “insane crimi-

nal” commitment under D.C. Code 1967, § 24-301, having

a partially punitive purpose, must be limited to the hypo-

thetical maximum sentence (less mandatory release time),

after which the acquitee would be entitled either to re-

lease or to a civil commitment proceeding. Accord, Waite

v. Jacobs, 154 U.S.App.D.C. 281, 284-85, 475 F.2d 392,

395-96 (1973).

Apropos of Brown, the en banc majority concedes in

the present case that the prior statute had “punitive as-

pects,” a quality that Bolton was necessary to “undo.”

Ante at 7. And yet in the same paragraph the major-

ity states that “(t]he 1970 amendments to § 301(d), en-

acted in response to” Bolton, “have not altered its origi-

nal purpose,” ante at 6-7, which the majority—in a non-

sequitur—characterizes as nonpunitive by reference to

Hough v. United States, 106 U.S.App.D.C. 192, 271 F.2d

458 (1959) and other pre-Bolton circuit court decisions.

The majority, therefore, is inherently inconsistent. If, as

the majority concedes, the pre-Bolton statute was puni-

tive, to the point that Bolton was necessary to correct its

unconstitutional impact, I do not see how statutory

amendments “in response to Bolton,” providing lesser pro-

tections, can be said automatically to remove the original,

“punitive aspects” of that statute. The question remains:

do the 1970 amendments modifying Bolton erase the pun-

itive purpose of the previous statute?

U.S. 605 (1967). The circuit court expressly modified its

earlier decisions in Overholser v. O’Beirne, 112 U.S.App.

D.C. 267, 302 F.2d 852 (1961); Ragsdale v. Overholser, 108

U.S.App.D.C. 308, 281 F.2d 943 (1960); and Overholser v.

Leach, 103 U.S.App.D.C. 289, 257 F.2d 667 (1958), cert.

denied, 359 U.S. 1018 (1959). Bolton, supra at 12, 395 F.2d

at 653.

[1205]

B. The Present Statute and Its Construction

1. Legislative history confirms that, in amending § 24-

801(d) in 1970, Congress held on to its original intent

to punish the criminal offender, if not by conviction and

imprisonment then by indefinite confinement in a mental

institution. The overriding concern of the House of Rep-

resentatives was that Boulton “permits dangerous crimi-

nals... ‘to have it both ways’—to escape both conviction

and com.......ent to a hospital.” House ComM. ON THE

District oF CoLUMBIA, DISTRICT OF COLUMBIA COURT

REFORM AND CRIMINAL PRODEDURE ACT oF 1970, Section

207—IJnsane Criminals, at 74, H.R. Rep. No. 91-907, 91st

Cong., 2d Sess. (emphasis added) (quoting Overholser v.

O’ Beirne, 112 U.S.App.D.C. 267, 276, 302 F.2d 852, 861

(1961)). The House considered the possibility that a

criminal offender could get off without being either con-

victed or hospitalized “intolerable.” Id. See Uniied States

v. Jackson, 179 U.S.App.D.C. 375, 381-82, 553 F.2d 109,

115-16 (1976).

The congressional intention in drafting the present

§ 24-301(d), therefore, was “to meet the objections of

the Bolton court while preserving the principle of the

mandatory commitment of those who escape criminal re-

sponsibility on the ground of mental abnormality.”

Bethea v. United States, D.C.App., 365 A.2d 64, 92 n.62

(1976), cert. denied, 433 U.S. 911 (1977) (emphasis

added). Congress wanted to confront the criminal de-

fendant with a choice: conviction or “the very real possi-

bility of prolonged therapeutic confinement.” /d. at 90

(footnote omitted). Because “the prospect of commit-

ment to a mental institution for an indefinite period is

much less desirable than a fixed term in prison,” United

States v. Freeman, 357 F.2d 606, 626 n.GO (2d Cir.

1966), Congress intended the substantial likelihood of

indefinite confinement tv provide an effective deterrent

to those tempted to misuse the insanity defense to avoid

[1206]

Sg ee

criminal incarceration. In short, the legislative history

of the 1970 amendments provides strong evidence that

Congress, in overruling Bolton, intended to restore as

much punishment under § 24-301(d) as constitutionally

would pass muster.

2. More than the legislative history, the legislative re-

sult—the statute itself—reveals that Congress maintained

its punishment objective.

First, the authorized procedures by which an acquitee

may challenge confinement in a mental institution, D.C.

Code 1973, §§ 24-301(d) (2), -(k)(1) through (6), do

nothing more than institutionalize the habeas corpus pro-

cedure that already was available at the time of Bolton.

See Miller v. Cameron, 118 U.S.App.D.C. 323, 324, 335

F.2d 986, 987 (1964); O’Beirne, supra at 275, 302 F.2d

at 860; Ragsdale v. Overholser, 108 U.S.App.D.C. 308,

313-14, 281 F.2d 943, 948-49 (1960); D.C. Code 1967,

§ 24-301(g). Procedurally, therefore, the acquitee is no

better off under § 24-301 today than he or she was under

the same statute before 1970. Unless the acquitee can

prove he or she is not mentally ill or dangerous, confine-

ment under § 24-301 is both automatic and indefinite.‘

*My colleagues’ implication that altering the burden of

proof and denyitig acquitees a right to jury trial are minor

procedural! distinctions from civil commitment, see ante at

15-21, is inconsistent with Congress’ purpose in amending

the statute to overrule Bolton. As this court recognized in

Bethea, supra, imposing the burden of proof on the acquitee

is a significant procedural distinction from civil commitment;

it is designed to make it more difficult. for the acquitee to

gain freedom. Jd. at 91-92. Indeed, where proof is often

difficult to assess, see Addington v. Texas, 441 U.S. 418, 429

(1979), “the allocation of the burden of proof may be out-

come determinative.” Waite supra at 284, 475 F.2d at 395.

The majority’s discounting of the role of the jury when

questions of mental capacity are at issue is also in direct

[1207]

82 &

Second, upon confinement, acquitees are not necessarily

treated the same as commitees. In this jurisdiction, an

individual is found not guilty.by reason of insanity if

“as a result of a mental disease or defect he lacked sub-

stantial capacity either to recognize the wrongfulness of

his conduct or to conform his conduct to the requirements

of law.” Bethea, supra at 79 (emphasis added). Ordi-

narily, this jurisdiction treats individuals suffering from

a mental “defect” (i.e., mental retardation) differently

from the way it treats individuals suffering from a men-

tal illness. Under civil commitment procedures, a men-

tally defective individual who is “not insane nor of un-

sound mind to such an extent to require his commitment

to a hospital for the mentally ill” is committed to Forest

Haven, a facility for retarded persons. D.C. Code 1973,

§§ 21-1101, 32-601. In contrast, an acquitee, even if only

suffering from a mental defect, is committed to a hos-

pital for the mentally ill, Saint Elizabeths. /Jd., § 24-301

(d).

In United States v. Jackson, supra, the court upheld

this distinction in treatment precisely because it recog-

conflict with our ruling in Bethea, supra, which emphasized

that, despite the impact of psychiatric testimony, it is for

the jury, not the psychiatric expert, to decide the accused's

mental stu.c. sd. at 82-83. The majority’s emphasis on the

factfinder’s reliance on expert testimony in accessing the

accused’s mental state (and thus on the lesser need for a

jury) was recently rejected by the United States Court of

Appeals for the District of Columbia Circuit in United States

v. Ecker, 177 U.S.App.D.C. 31, 643 F.2d 178 (1976), cert.

denied, 4229 U.S. 1063 (1977). There, the court upheld the

trial court’s refusal to release an acquitee from a mental

hospital despite the recommendations of his doctors, stating,

“the district court must independently ‘weigh the evidence’

and make a de novo determination that the patient will not

in the reasonable future endanger himself or others.” Jd. at

40, 543 F.2d at 187 (emphasis in the original).

{1208}

ee ey ee ee ee ee

‘a 33

nized that Congress “intended that all defendants ac-

quitted by reason of insanity should be distinguished

from all other persons, including persons civilly commit-

ted for mental diseases or retardation.” Jd. at 381, 553

F.2d at 115 (emphasis in original). In Jackson, the court

justified this difference in treatment on the basis that ac-

quitees, but for their insanity plea, had been found guilty

of crimes against society. Jd. at 387, 553 F.2d at 121,

Apropos of Jackson, this difference in treatment of cer-

tain acquitees cannot possibly be justified merely on the

basis of an evidentiary presumption concerning the con-

tinuing mental condition of the acquitee. See note 1 supra.

Rather, it is an express statutory provision, justified by

reference to the criminality of the acquitee’s prior

conduct.

Third, and perhaps most telling, is another example of

differing possibilities for release of acquitees and com-

mitees after confinement. When the superintendent of

rs) Saint Elizabeths Hospital certifies that a commitee is

cured, the individual is discharged from the hospital.

D.C. Code 1973, § 21-590. In contrast, when the hospital

superintendent certifies that an acquitee has recovered,

the government may demand a hearing. At this hearing,

if the court is not convinced that the acquitee has recov-

ered, the court may order his or her return to the hospital

even though the authorities there consider the individual

well enough for release. D.C. Code 1973, § 24-301 (e).

In United States v. Ecker, 177 U.S.App.D.C. 31, 543

F.2d 178 (1976), cert. denied, 429 U.S. 1063 (1977), an

acquitee challenged the constitutional validity of this

added hurdle—court approval—before release. Five years

after a jury had found the defendant not guilty of rape

and murder by reason of insanity, the superintendent of

Saint Elizabeths recommended conditional release. After

a hearing, despite the recommendation of the examin-

ing psychiatrists, the trial court denied the hospital’s re-

{1209}

EE A

quest and ordered continued hospital confinement. In up-

holding the statute and the trial court’s decision, the fed-

eral circuit court expressly relied on the fact that Ecker

had committed a violent criminal act.* Jd. at 52, 543 F.2d

at 199. Whether or not the hospital psychiatrists thought

Ecker should be released, the trial court had a duty to

protect “the public against whom the acquitee has already

been shown to have committed one or more criminal acts,

thus differentiating himself from the civil commitee.” Id.

at 51, 543 F.2d at 198. “More importantly,” the court re-

jected Ecker’s equal protection argument based on Jack-

son v. Indiana, 406 U.S. 715 (1972), Baxstrom v. Herold,

383 U.S. 107 (1966), and Humphrey v. Cady, 405 U.S.

504 (1972), reasoning “that the criminal conviction may

justify some differences in procedural safeguards if the

differences are ‘limited by the nature of the defendant's

crime or the maximum sentence authorized for that

crime’” Id. at 51-52, 543 F.2d at 198-99 (quoting

Humphrey, supra at 511) (emphasis added). Because oe

Ecker could have been incarcerated, however, for a life

sentence if not acquitted by reason of insanity, the differ-

ences in release procedures (between acquitees and com-

mitees) were therefore justifiable. Finally, the court re-

jected the hospital recommendation by saying that even if

the hospital were correct “that a step-by-step reentry into

the community [was] essential to Ecker’s continued im-

provement,” an acquitee “who has committed violent

criminal acts” has “no right to treatment at the com-

munity’s peril.” Jd. at 52-53, 543 F.2d 199-200.

* The circuit court, more than once, has relied on the nature

of the underlying offense to justify the consequences of con-

finement under § 24-301(d). In United States v. Jackson,

supra, the court emphasized that the defendant had becn

acquitted by reason of insanity of first degree burglary and

rape, in contrast with mere theft of smzll sums which would

“not indicate excessive dangerousness.” Jd. at 387, 553 F.2c

at 121.

{1210} w

Given the legislative history, the differences in treat,

ment of acquitees and commitees, and the judicial gloss

on the statute by decisions such as Ecker, the majority’s

position that the purpose of the statute is solely to

“treat[] and rehabilitat[e] mental patients who happen

to have been acquitted of crimes by reason of insanity,”

ante at 10, is unsupportable. Acquitees are not just men-

tal patients “who happen” to have been acquitted of

crimes by reason of insanity. The fact of their criminal

conduct continues to play a decisive role in the nature of

their treatment and their chances for release after initial

commitment. Congress and the courts have justified this

harsher treatment precisely because acquitees have com-

mitted crimes.

C. The Relevance of the Statutory Maximum Sentence

The majority rejects the use of statutory maximum

sentences to determine the maximum length of confine-

ment under § 24-301 because such maximums have “no

relationship to the purposes of mental care and treat-

ment.” Ante at 8. I agree. The majority states that

“[t]}he notion that the duration of an acquitee’s hospitali-

zation can be established by statute or court order ignores

the most basic precepts of medicine and psychiatry. . . .”

Ante at 10. Again, I agree. If the acquitee were hos-

pitalized solely for medical reasons, I would be the first

to concur that a statutory maximum for confinement

based on the nature of the acquitee’s criminal conduct

would have no relevance or application. But the problem

is—and is so clearly evident in Ecker—that acquitees are

not confined to mental-institutions for medical reasons

alone. Thev are confined there in part because society is

unwilling to allow those who have committed crimes to

escape without paying for their crimes. The intent of the

statute is partially punitive, and thus the procedures

under § 24-301 reflect this added burden on the defend-

{1211}

ant. Because of this punitive purpose, the maximum stat-

utory period of confinement becomes relevant, for at that

point society no longer has a,yalid interest in continued

confinement on the basis of a shortcut procedure. Brown,

supra at 408, 478 F.2d at 612; see Waite, supra at 285,

475 F.2d at 396; note 2 supra.*

* Although the foregoing discussion is sufficient to demon-

strate the congressional purpose underlying D.C. Code 1973,

§ 24-301, I note briefly that the other Kennedy factors con-

firm the punitive intent.

By definition, confinement to a mental institution is “an

affirmative disability or restraint,” id. at 168, even more

perhaps than imprisonment, see Vitek v. Jones, 445 U.S. 480,

493-94 (1980), given the indefinite duration and the stigma.

Sce Addington, supra at 425-26. Despite its use for treatment,

moreover, confinement for mental illness and dangerousness

as a consequence of a criminal act “has historically been

regarded as a punishment,” Kennedy, supra at 168, for which

the Supreme Court continually has had to write constitutional

guidelines. Sec, e.g., Jackson v. Indiana, supra; Humphrey,

supra; Specht, supra; Bazstrom, supra.

Criminal confinement also comes into play “only on a

finding of scienter,” Kennedy, supra at 168; sce Rethea,

supra at 94, and “the behavior to which it applies is already

a crime,” Kennedy, supra at 168, by virtue of the criminal

conviction that precedes it. The statute «so “promote[s]

the traditional aims of punishment—retricution and deter-

ence,” id., for, as already indicated, Congress and this court

have noted a desire to prev nt the misuse of the insanity

* defense by making the consequences more severe than de novo

civil commitment. In addition, criminal confinement at a

mental institution serves other goals of punishment, incapaci-

talion and rehabilitation. See United States v. Brown, 381

U.S. 437, 458 (1965) (“Punishment serves several purpose:

retribulive, rehabilitative, deterrent—and preventive”). Sec

gencrally J. Vorennerc, Criminal Law & Procepure 44-57

(1975).

Finally, for reasons already discussed, I do not believe

there is a wholly nonpunitive, “alternative purpose,” Ken-

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()

Ill.

Society’s right to punish Michael Jones for his first

offense, a misdemeanor—stealing a coat—has long since

expired. As every day passes he is denied equa! protec-

tion of the laws.” Michael Jones should be released unless

civilly committed.

nedy, supra at 168-69, assignable to § 24-301; but even if

the purposes assigned by the majority—treatment of the

acquitee and protection of society—were altogether non-

punitive, the indefinite confinement of Michael Jones for

stealing a coat is well beyond any public protection gloss on

the statute’s purpose. It is one thing to keep an acquitee

of murder and rape confined for life, see Ecker, supra, as he

would be under appellant’s theory here, for those are life-

sentence crimes. But society has no “protection” interest in

confining Michael Jones indefinitely for stealing a coat, a

misdemeanor punishable by maximum confinement for one

year.

7 When a court confronts different procedural safeguards

afforded to different classes of individuals committed to

mental institutions, concerns of equal protection and due

process become interrelated. See Jackson v. Indiana, supra at

731; cf. Humphrey, supra at 611 (1972) (noting with favor

the state court’s consideration of Eyual Protection Clause

as relevant to procedural due process analysis) ; Specht, supra

at 608 (commitment proceedings for sex offenders subject

both to Equal Protection and Due Process Clauses). In

evaluating equal protection for the acquitee, I have not

reached the question of due process as an independent con-

cern, although there is a serious question here. I note, more-

over, that any effort to reduce the procedural safeguards

afforded to civil commitees, while possibly resolving equal

protection problems, would raise serious questions of due

process for that class of individuals.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.