Joint Appendix — Jones v. United States

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Supreme Court, U.S.

FILED

APR 6 198?

No. 81-5195

AEEXANEE STEVAS

CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1981

MICHAEL JONES,

Petitioner

UNITED STATES OF AMERICA,

Respondent |

ON WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

JOINT APPENDIX

WuLAN J. MERTENS Rex E. Lee

Public Defender Service Solicitor Generw

451 Indiana Avenue, N.W. Department of Justice

Washington, D.C. 20001 Washington, D.C. 20530

(202) 628-1200 Counsel for Respondent

Counsei for Petitioner

TABLE OF CONTENTS

Docket Entries:

Superior Court of the District of Columbia ...........

District of Columbia Court of Appeals

Opinion of the District of Columbia Court of Appeals

Oe IY I I ae ceinineitetceiciesladdantlinnnn

e ....

Opinion of the Distriet of Columbia Court of Appeals,

sitting en banc, of May 29, 1911 K eS

Order of the Supreme Court of the United States Grant-

ing Motion for Leave to Proceed in forma pauperis

and Granting Petition for Writ of Certiorari

SUPERIOR COURT OF THE

DISTRICT OF COLUMBIA

Docket No.: 73450-75

UNITED STATES

MICHAEL A. JONES

The following is a chronological listing of all court

proceedings.

DATE

ENTRIES

JUDGE —

1975

Sept. 20

Nov. 20

Plea: Not Guilty—Continued to

December 2, 1975 Surety Bond:

$1,000.

C 9-22-75 for Forensic Exam as

to competency. Come up to be

issued. Committed

Report from Forensic received

and filed herein. ec

Letter received. The Court orders

defendant committed to St. Eliza-

beth’s Hospital for mental exami-

nation and report. Cont’d to No-

vember 25, 1975. Competency

and productivity. Committed

Janice R. Hunt, Official Court

Reporter. Counsel never ap-

peared. Report not ready. Case

continued to January 6. 1976 for

competency hearing. Defendant

to be returned to Saint E’s.

(1)

Washington

Draper

ENTRIES

Mar. 2

Mar. 8

Katherine Reynolds, Official Court

Reporter. No parties present.

Case continued to March 2, 1976

for hearing and report. Com-

mitted

Report from St. E’s Hospital re-

ceived and filed. Forwarded to

Judge Moore. ec

Defendant and Attorney present.

Competency hearing held. No ob-

jection by counsel to the report

of competency. The court finds

the defendant competent and de-

fendant is so adjudged or ajudi-

cated. Case continued to March 8,

1976 for non-jury trial in Court-

room #15. Bond set $300 surety.

Vacate above entry as to bond

only. Defendant held w/o bond

pending trial. Defendant to be

committed to Correctional Center

to be placed in half-way house.

Defendant to assignment com-

mission.

Time to Assignment commission

1022

Time to Trial Judge

Time Trial Judge received

Assigned to Judge Stewart. 10:25

Darlene M. Leasure, Official Court

Reporter. Defendant not brought

up. Case certified back to 215

for continuance. 11:28 a.m.

Moore

Ugast

Moore

Stewart

ENTRIES

Mar. 10

Mar. 12

Apr. 27

May 3

Continued to March 9, 1976 be-

fore M.O. judge for NGI plea.

Counsel present. Case continued

to 3-1-76, Vivian A. Principato,

Official Court Reporter. Before

J. Moore for N. G. I. plea

Counsel present case continued to

3-12-76 for M.O. (N.G.I. plea)

before J. Moore. Committed

Defendant and Attorney present.

Vivian A. Principato Official

Court Reporter. Trial by the

Court commenced at 3:00 p.m.

Government presents statement

of facts. Stipulate to by defense.

Testimony taken by Dr. David

Shapiro. Judgment by the Court

of not guilty by reason of insan-

ity. Case continued before the

mental competency judge for a

bolton hearing on April 27, 1976.

Defendant remanded into the

custody of the United States

Marshal

Report received and filed herein.

je.

Pearl D. Stucky, Official Court

Reporter. Case continued to May

4, 1976 for Hearing. Attorney

Shellair contacted late in the

afternoon and not prepared. De-

fendant to return to St. E’s

Case continued until May 25,

1976 at 10:00. Doctor unable to

be present at hearing

Moore

Campbell

ENTRIES

JUDGE

Nov. 30

1977

Jan. 17

Jan. 18

Jan. 17

Hearing having further continued

until 11-29-76. Parties Present

Patricia Y. Sanborn, Official

Court Reporter. Accused present

Continued to January 18, 1977

for M.O. Hearing to consider civil

committment. The U.S. Atty’s

office has until January 21, 1977

to show with the previous order

should not be set aside. Accused

to return to St. E’s Hospital.

Order signed by Judge Hamilton

received and filed herein.

Motion to modify Order from

AUSA received and filed herein

Katherine Reynolds, Official Court

Reporter. Governments Motion to

modify order granted. Defense

to file response within 10 days

of this date, government to re-

sponse opposition February 8,

1977 Accused to return to St. E’s

Hospital.

Respondent’s opposition to Gov-

ernment Motion to Modify Order

received and filed herein

Motion to modify Order received

and filed this day.

Washington

Hamilton

ENTRIES

JUDGE

1977

Jan. 24

Jan. 26

Feb. 2

Feb. 24

Feb. 28

Entry of 18 Jan. 77 hereby va-

cated Government’s motion to

modify Order of November 30,

1976 is hereby GRANTED as of

January 18, 1977. See Order

herein.

Respondent’s Motion for recon-

sideration and for immediate re-

lease of respondent from further

commitment at Saint Elizabeth’s

Hospital received and filed. For-

warded to Judge Jamilton. ec

Respondent’s motion for recon-

sideration and for immediate re-

lease of respondent from further

committment at St. E’s Hospital,

reviewed and denied.

Motion for release from Saint

Elizabeth’s Hospital. ec

Memorandum of points and Au-

thorities in Support of Petition-

er’s Motion for Release from

Saint Elizabeth’s Hospital. ec

Notice of Appeal received and

filed forwarded to Mr. McRae’s

office. ec

Hamilton

RELEVANT DOCKET ENTRIES IN THE

DISTRICT OF COLUMBIA COURT OF APPEALS

In Case. No. 11918

MICHAEL A. JONES, APPELLANT

UV.

UNITED STATES, APPELLEE

FILINGS-PROCEEDIN S

777/77

7/13/77

11/11/77

12/5/77

12/21/77

12/29/77

1/5/77

11/28/78

1/2/79

Motion of Appellant for summary reversal (m-14)

Opposition of appellee to motion for summary

reversal (m-23)

Reply of appellant to opposition to motion for sum-

mary reversal (m-30)

Motion of appellee for summary affirmance (m-7)

Opposition of appellant to motion for summary

affirmance (m-13)

ORDER denying the motions of summary reversal

and summary affirmance and the case shall be

expedited for oral argument (Judges Mack and

Ferren)

ARGUED before Judges Kelly, Mack and Ferren

ORDER directing counsel for appellee to file a

post hearing brief within 10 days from this order

and appellant's shall file a response with 7 days

of service (Judges Kelly, Mack and Ferren)

Motion of appellee to file brief (m-21) GRANTED

(COG) 12/29/77

Appellee’s Brief. (m-21)

Appellant’s brief (m-5)

OPINION per Associate Judge John M. Ferren.

Judgment sustaining the order on appeal subject

to appellant’s right to periodic review. (p. 3224)

Appellant’s petition for rehearing and rehearing

en bane (m-12/26)

DATE

FILINGS-PROCEEDINGS

2/26/79

5/20/79

4/16/79

2/4/80

3/11/80

4/22/80

9/8/80

5/29/81

1/13/81

Appellee’s opposition to petition for rehearing or

rehearing en banc (m-26)

ORDER scheduling rehearing before the division

on April 16, 1979 at 1:30 p.m. (Judges Kelly, Mack

and Ferren

ARGUED before Judges Kelly, Mack and Ferren

OPINION per Associate Judge John M. Ferren.

Concurring opinion by Judge Mack; dissenting

opinion by Judge Kelly. (p. 170) Order vacating

the opinion and judgment of 11/28/78, and the

government shall have 30 days to initiate civil

commitment proceeding from the issuance of man-

date, etc.

Appellee’s petition for rehearing en banc (m-10)

ORDER granting appellee’s petition for rehearing

en banc; vacating the 2/4/80 opinions and order

heretofore entered; Clerk of Superior Court to

return mandate; Clerk to schedule oral argument

before en banc court as soon as business permits;

counsel directed to file nine additional copies of

briefs heretofore filed by Monday 5/12/80 (New-

man, Kelly, Kern, Gallagher, Nebeker, Harris,

Mack, Ferren, Pryor) cmj

ARGUED before Judges Newman, Kelly, Kern,

Gallagher, Nebeker, Harris, Mack, Ferren and

Pryor. mj

OPINION for the Court by Associate Judge Cath-

erine B. Kelly. (p. 1177) Dissenting opinion by

Associate Judge John M. Ferren, with whom

Chief Judge Newman and Associate Judge Mack

join. (p. 1201)

JUDGMENT affirming trial court’s order denying

appellant’s right to immediate release or, in the

alternative, civil commitment pursuant to D.C.

Code 1973, f 21-545(b). mj

Order of Supreme Ct granting pet for cert in f.p.

on 1-11-82 (#81-5195)

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 11918

MICHAEL A. JONES, APPELLANT

UNITED STATES, APPELLEE

Appeal from the Superior Court of the

District of Columbia

(Hon. Eugene N. Hamilton, Hearing Judge)

(Argued December 5, 1977 Decided November 28, 1978)

Before KELLY, MACK, and FERREN, Associate Judge

FERREN, Associate Judge: The trial court found ap-

pellant Michaei Jones not guilty of petit larceny by rea-

son of insanity. After a “release hearing,” D.C. Code

1973, § 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 does not challenge the validity of his initial

commitment to St. Elizabeths after the “release hearing.”

On the assumption, therefore, that this commitment was

lawful, we can perceive no 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 ap-

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

dangerous to self or others, and should receive treatment

until he is well enough for release. We therefore affirm

the denial of appellant’s motion for civil commitment or

release.

On September 19, 1975, the police arrested Michael

Jones for attempting to steal a coat from a depart-

ment store. The next day the government charged him

with attempted petit larceny; and, following a com-

petency examination yielding a finding of mental illness,

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

tal observation pursuant to D.C. Code 1973, § 24-301 (a).

He remained in the District of Columbia jail for four

and one-half months until bed space became available at

St. Elizabeths on February 4, 1976.

Following the observaticn period, appellant went to

trial on stipulated facts. In an uncontested proceeding,

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,

§ 24-301(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 ill and likely

to be dangerous to himself or others in the reasonable

future. The court accordingly 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 hearing for

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

counsel appeared before Judge Hamilton and orally re-

quested that appellant be released—or civilly committed

since his cumulative hospital confinement had exceeded

the one-year maximum period of incarceration for at-

tempted petit larceny. No attorney appeared for the

government. The judge responded with an order that the

government either pursue civil commitment 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 pursuaded 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 court denied appellant’s

motion and reaffirmed the findings of May 25, i.e., that

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 argument on the appeal. After argument before this

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

In his final brief, appellant confirms the narrow scope

of the question presented in this appeal. A] ppellant'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

could have been imposed had the defendant been con-

victed has run—is constitutionally impermissible unless

the government 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 to the proc-

ess for initial commitment which ordinarily follows an

insanity acquittal. 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.

II.

According to appellant, the principles of Baxstrom v.

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

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

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

(1973), mandate a conclusion that the equal protection

clause is transgressed when insanity acquitees are held

beyond their maximum potential terms of imprisonment

without the intervention of civil commitment procedures.“

To comprehend his argument fully, a brief history is in

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 allowed]! a pa-

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

remain in the hospital for the rest of his life without a

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 Ill Act,

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

protections for civilly committed 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 Bolton, therefore,

the circuit court explored the “sharp contrast” between

the two commitment schemes in light of the Supreme

Court’s Baxstrom principle “that the commission of

criminal acts does not give rise to a presumption of

dangerousness which, standing alone, justifies substantial

difference in commitment procedures and confinement

1The 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), rev'd on other grounds, 426 U.S. (1976).

conditions for the mentally ill.” Bolton, supra at 6,

395 F.2d at 647. Concluding that the differences be-

tween the two groups, insanity acquitees and civil com-

mitees, could not constitutionally support most of the

differences in procedure, the court read mos of the 1964

Act’s civil commitment safeguards into the “insane

criminal” commitment scheme.“ Thereafter, acquitees

were entitled to a “Bolton hearing” after trial: “a judi-

cial hearing with procedures substantially similar to

those in civil commitment proceedings.” Id. at 10, 395

F.2d at 651 (footnote omitted).

In 1970, however, Congress responded to the Bolton

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

satisfied with the anticipated consequences of Bolton,

Congress attempted to accommodate the acquitee’s con-

stitutional rights and provide rehabilitative opportunities

while protecting the public against anticipated danger.

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

F.2d 109, 115 (1976). By the terms of the amended, and

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

again faces autematic commitment:

If any person tried upon an indictment or infor-

mation for an offense raises the defense of in-

sanity and is acquitted solely on the ground that

he was insane at the time of its commission, he

shall be committed to a hospital for the mentally

ill until such time as he is eligible for release pur-

suant to this subsection or subsection (e). [D.C.

Code 1973, § 24-301 (d) (1).]

The next paragraph of the statute, however, eliminates

the pre-Bolton possibility of indeterminate commitment

without judicial review. Congress provided for an auto-

2 The court expressly permitted two distinctions to continue:

(1) automatic, temporary commitment of acquitees and (2) manda-

tory court review of a hospital's release decision for acquitees.

Bolton, supra at 10-11, 395 F.2d at 651-52.

matic, legislatively tailored “release hearing” within 50

days of the § 24-301(d) (1) commitment:

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 determine the issues and make findings

of fact and conclusions of law with respect thereto.

[D.C. Code 1973, § 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 about the Bolton limitation

on the ability to continue commitment of those who suc-

cessfully interpose 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 Bolton decision. It is the dif-

ferences between the post-1970 “modified Bolton“ 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 Bolton,

that must be the focus of our equal protection analysis.

These differences are substantial.

Civil commitees have “commitment hearings” at which

the government bears the burden of proving “mental

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

sons” beyond a reasonable doubt. D.C. Code 1973, § 21-

545(b); In re Ballay, 157 U.S.App.D.C. 59, 482 F.2d

648 (1973). In contrast, at a §301(d)(2) “release

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

strating 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

1973, §§ 24-301(d) (2), -301(e). The civil commitment

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

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

civil commitee does not require court supervision, § 21-

546, whereas the court retains tne last word for acquitees,

§ 24-301(e). The civil scheme furnishes regular six-

month review initiated by the hospital, § 21-548, while

the scheme for acquitees mandates review only upon a

motion for relief, § 24-301(k), or petition for habeas

corpus, § 24-301(g), initiated by the patient (while per-

mitting review initiated by the hospital, § 24-301 (e)).

Appellant maintains that even if the rationale for

different commitment procedures is valid,“ it must expire

at a time no later than the end of the maximum prison

term which could have resulted from criminal conviction.

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.

III.

The United States Court of Appeals for the Distriet

of Columbia Circuit has given a measure of judicial

Although the issue has not been resolved, there has been much

discussion concerning the propriety of th. 1970 insanity commit-

ment amendments and their vulnerability of a new Bolton-type

chailenge. See Bethea v. United States, D.C.App., 365 A.2d 64, 92

(1976), cert. denied, 433 U.S. 911 (1977); United States v. Jackson,

supra; United States v. Ecker, 177 U.S.App.D.C. 31, 40-41, 543

F.2d 178, 187-88 (1976) ; cert. denied, 429 U.S. 1063 (1977) ; United

States v. Wright, 167 U.S.App.D.C. 309, 311 n.9, 511 F.2d 1311,

1313 n.9 (1976); Johnson v. Robinson, 166 U.S.App.D.C. 62, 66,

509 F.2d 395, 399 (1977); United States v. Brown, 155 U.S.App.

D.C. 402, 404 n.3, 478 F.2d 606, 608 n.3 (1973); Dixon v. Jacobs,

138 U.S.App.D.C. 319, 332-34, 427 F.2d 589, 602-04 (1970) (Leven-

thal, J., concurring and dissenting).

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

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

reap Bolton’s prospective benefits, Bolton, 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 that

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 distinguish between

an acquittee and a commitee. Acquitees who have

been confined for that period, therefore, may be

entitled to treatment no different from that afforded

commitees. [Waite v. Jacobs, supra at 284, 475 F.2d

at 395.]

The court then stated the issue to be “whether appellant,

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

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

a matter of law, is situated differently from a commitee.

Advertising to the radical differences in initial treatment

(pre-Bolton v. civil commitment), the court perceived

that pre-Bolton acquitees and commitees were not on

equal footing; it then opined that equal protection might

well be transgressed in a 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], so also may it be irrational

to place similar burdens on persons situated differently.”

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

seem that [appellant] ha[d] a right to a hearing, with

all the procedural safeguards available in civil commit-

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

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

mitment actually was attributable to a civil commitment

which had preceded the criminal action, and because the

court’s novel equal protection analysis had not been

briefed or argued, the court did not order specific relief;

instead, it remanded the case to the district court for

further proceedings.

It 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-

quitees, eventually requires remedial, i.e., compensating,

procedures for acquitees because their initial commit-

ments were more perfunctory. For several reasons, how-

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

applicable to this case.*

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

tinguishable 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 cireumstances of his pre-Bolton status, Waite

At least four subsequent circuit court opinions have mentioned

Waite approvingly. Only one, however, definitely approved the

“equalization” approach to an equal protection challenge, see John-

son V. Robinson, supra, and the expression of approval in Johnson

is dicta. (The court, observing that appellant wished the “constitu-

tional suggestion” of Waite transformed into a holding, required

appellant first to present his, Waite-base argument to the local

District of Columbia courts.) In United States v. Ecker, supra;

“United States v. Brown, supra; and Dixon v. Jacobs, supra (Leven-

thal, J., concurring and dissenting), the court reaffirmed Waite's

“equal footing” conclusion; i.e., that at the end of the maximum

period for which acquitees could have been sentenced, no dif-

ferentiation is acceptable between them and commitees. It is not

clear, however, that those opinions adopted the “equalization”

analysis mandating additional, remedial procedures for acquitees

at that point.

5 For discussions of the irrationality of basing a finding of pres-

ent mental illness on a previous doubt about sanity, see United

States v. Brown, supra at 409, 478 F.2d at 613 (Wright, J., dis-

senting); Bolton, supra at 6, 395 F.2d at 647.

had remained confined in a mental hospital without ever

receiving constitutional, 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-

301(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-

vis civil commitees. Because Waite was a pre-Baxstrom,

pre-Bolton acquitee, his initial commitment was consti-

tutionally invalid; the court accordingly found him, as a

matter of law, “situated differently” from a civil com-

mitee. Waite, supra, at 288-89, 475 F.2d 399-400. Jones,

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

301(d) safeguards in his release hearing were constitu-

tionally sufficient to fill the historical gap in protection

(upon initial commitment) between acquitees and com-

mitees—the gap which persuaded the circuit court to as-

sist Waite, and Bolton before him, on equal protection

grounds.

The present case, therefore, is significantly different

from Waite, which was a decision explicitly limited to

pre-Bolton acquitees. Waite, swpra at 285 n.8, 475 F.2d

at 396 n.8. We are presented here with a much narrower

That the inequity of the situation may have influenced the

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

Jacobs, supra at 284 n.7, 475 F.2d at 395 n.7, and by Johnson v.

Robinson, supra at 63, 509 F.2d at 396, both of which referred to

the “anomaly” created by Bolton's prospective application.

question: whether, as a matter of equal protection, the

differences in valid initial commitment procedures for

acquitees and commitees are nevertheless significant

enough to require a remedy for the acquitee at the ex-

piration of the maximum period for which he could have

been sentenced—a remedy granting him either his out-

right release or a second (this time purely civil) com-

mitment proceeding. The constitutional rationale for

such a remedy, assuming for argument’s sake the validity

of Waite’s equalization theory for equal protection, would

be that the post-1970 acquitee, like the pre-Bolton ac-

quitee, has been “situated differently” from a commitee

(while treated the same), despite the presumed validity

of the respective initial commitment procedures. We

therefore must examine whether, as a matter of law,

situational differences can be said to exist upon confine-

ment.

An acquitee’s § 24-301 release hearing and a com-

mitee’s § 21-545(b) civil commitment hearing both pur-

port to determine whether one is mentally ill and danger-

ous.“ Thus, these respective procedures can result in

differently situated confinees only if the acquitee’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

The determination for an acquitee is whether he “has recovered

his sanity [and] . . . will not in the reasonable future be dangerous

to himself or others.” D.C. Code 1973, § 24-301(e). The deter-

mination for a potential commitee is whether “the person is

mentally ill and, because of that illness, is likely to injure himself

or other persons if allowed to remain at liberty.” D.C. Code 1973,

§ 21-545(b).

More particularly, one might argue that an acquitee’s commit-

ment is actually based on more than a mentally ill and dangerous

finding— that the acquitee’s burden to prove his sanity, without

right to jury trial, reflects a punitive gloss derived from his pre-

vious criminal behavior. It would follow that an acquitee is situ-

ated differently from a commitee because this extra, punitive basis

appellant’s confinement after a § 24-301 release is not

challenged, however, appellant must be presumed to agree

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

tive considerations; otherwise, it would be unconstitu-

tional under Baxstrom, supra; see Humphrey v. Cady,

405 U.S. 504, 510-11 (1972); Waite, supra at 285-86,

475 F.2d 396-97; note 8 supra. Therefore, absent any

explanation as to why the § 24-301(d) release hearing

results in lesser quality findings of illness and dangerous-

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

must conclude that the findings are legally the same.

It is true, of course, that appellant’s criminal offense is

the reason why his confinement took place by way of

§ 24-301(d), not § 21-545 (b). Thus, in order to be as

clear as possible why it makes no legal difference in this

case whether appellant was initially confined under the

“insane criminal” or the civil commitment procedure, we

should explain (without deciding) the argument why

§ 24-301(d ) is not punitive—why, under § 24-301(d) the

criminal offense does not provide a basis for confinement.

Once it is clear that § 24-301(d) and § 21-545(b) arguably

establish equally valid procedures for determining mental

illness and dangerousness, it should then be clear why

appellant’s request here—release or civil commitment at

the end of the maximum potential prison term—is incon-

sistent with the presumed validity of his confinement.

Arguably, the acknowledged differences between the two

procedures—most notably the right to jury trial and allo-

cation of the burden of proof to the government under

the civil commitment scheme—can be justified by refer-

ence to situational differences between the two groups

immediately prior to the respective hearings. The civil

commitment question, as to any potential commitee, is of

first impression, whereas the “release hearing” procedure

for commitment has permitted an abbreviated, more burdensome

release hearing, resulting, arguably, in a less valid finding of mental

illness and dangerousness than the civil commitment process would

yield.

for an acquitee presumably can be somewhat abbreviated

because of the predictive value of the initial determina-

tions of insanity and dangerousness at the criminal trial.

(That predictive value rests on the defendant’s own prior

proof of his insanity by a preponderance of the evidence—

by a jury trial if he requested it.) Whereas the § 24-545

(b) hearing, therefore, represents a de novo process, the

§ 24-301(d) hearing is an updating process to determine

how present mental status compares with earlier findings

which had been urged by the defendant himself. See note

7 supra. In either case, the only concern is a determina-

tion as to sanity and dangerousness, with a view to re-

habilitation. Given these situational differences between

acquitees and potential commitees immediately prior to

the initial commitment determination, the difference in

hearing procedures is arguably justified; there is no consti-

tutional prohibition against rational differences in the

treatment of differently situated persons.

There is accordingly, no room for appellant’s contention

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 con-

finement procedures differ for acquitees and commitees,

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 punishment.’ The

termination of the maximum sentence period is thus ir-

relevant to the status of acquitees; that termination does

not alter the similarity of situation between acquitees

(after confinement) and commitees.

In summary, the length of a hypothetical potential

prison term has no relationship to the rehabilitative goal

of hospital confinement. If, as the presumed validity of

* Appellant has not argued that his physical or other treatment

at St. Elizabeths, as an acquitee, differs in a legally significant way

from that accorded to commitees.

appellant’s initial commitment implies, the differences in

hearing procedures for acquitees and commitees are justi-

fied because, prior to hearing, they are differently situ-

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

for arguing that an abrupt change of procedure is re-

quired simply because somewhere along the line the hypo-

thetical maximum sentence has ended. The proper context

for analysis is rehabilitating the patient, not ending a

penal sentence.

IV.

There is, however, a final point to be made. In holding

ment) of a person if validly committed pursuant to

a § 24-301(d) release hearing, we feel bound to make

clear that this decision does not affect the continuing valid-

ity of Bolton, supra with respect to post-commitment

acquitees. As noted earlier, the chapter 24 criminal com-

mitment scheme for acquitees does not mandate the reg-

ular six-month review, initiated by the hospital, afforded

to civil commitees by § 21-548. Chapter 24 only provides

for review at the hospital’s initiative, § 24-301(e), upon

the acquitee’s motion for relief, § 24-301(k), or upon peti-

tion for habeas corpus, § 24-301(g). Because post-

commitment acquitees and commitees are similarly sit-

uated, we conclude that, as a matter of constitutional

equal protection, acquitees are entitled to periodic review

similar to that afforded to civil commitees. See Bolton,

supra. Accordingly, we hold that D.C. Code 1973, § 21-

548, shall be deemed applicable to hospitalized acquitees

at least to the extent required by Bolton, supra. See note

2 supra.“

10 We feel constrained by M. A P. v. Ryan, D.C.App., 285 A.2d

310 (1971) both to acknowledge—and not go beyond—the holding

in Bolton, supra on this point.

Appellee’s motion for summary affirmance is granted.

Appellant’s motion for summary reversal is denied. As

a result, appellant Jones’ commitment order is sustained,

subject to his right to periodic review in accordance with

this opinion.

So ordered.

MACK, Associate Judge: I read the majority opinion

as holding that the right to release of a person acquitted

of a crime, but confined because of mental illness, cannot

turn upon the length of a sentence that the person might

have received had he been convicted. I do not read the

opinion as suggesting that the procedures outlined in

D.C. Code 1973, § 24-301 would pass muster as against

a challenge on equal protection or procedural due process

grounds. See Jackson v. Indiana, 406 U.S. 715 (1972).

For these reasons I concur.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 11918

MICHAEL A. JONES, * PELLANT

UNITED STATES, APPELLEE

On Petition for Rehearing

(Hon. Eugene N. Hamilton, Hearing Judge)

(Argued April 16, 1979 Decided February 4, 1980)

Before KELLY, MACK, and FERREN, Associate Judges.

Opinion for the court by Associate Judge FERREN.

Concurring opinion by Associate Judge MACK.

Dissenting opinion by Associate Judge KELLY.

FERREN, Asssociate Judge: Michael A. Jones was

found not guilty of petit larceny by reason of insanity.

Thereafter, 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 at 396 A.2d 183 (1978), we rejected Jones’ con-

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

tion, to 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 still

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 uncontested here), we held there is

no constitutional requirement that appellant be re-

leased or civilly committed at the end of the maxi-

mum imprisonment period, for that period bears no

relationship to the unchallenged basis for appellant’s

hospital confinement: that he is mentally ill, is dan-

gerous to self or others, and should receive treatment

until he is well enough for release. [Jones, supra

at 184.]

After reconsideration, we vacate our first order. We

conclude that an acquitee may not be confined for treat-

ment pursuant to § 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 release at the end of that period unless the

government 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.

Central to the analysis in our first opinion was the

following legal premise, based on Baxstrom v. Here d,

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.

In Baxstrom, 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 commitees. Since Baxrstrom.

the Court has upheld other equal protection challenges by indi-

viduals who enter mental health facilities through the criminal

process. See Jackson v. Indiana, 406 U.S. 715 (1972) (equal pro-

tection violated by state procedures which provide more lenient

commitment standards and more stringent release standards for

those criminal defendants found incompetent to stand trial than

for those civilly committed); 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 com-

mitted under sex crimes act).

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 con-

finement is not based, even in part, on punitive con-

siderations; otherwise, it would be unconstitutional

under Baxstrom, supra; see Humphrey v. Cady, 405

U.S. 504, 510-11 . . . (1972) ; Waite [v. Jacobs, 154

U.S.App.D.C. 281, 285-86, 475 F.2d 392, 396-97

(1973)] J. . . Therefore, 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).] “

In his petition for rehearing, appellant questions our

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

“release hearing” procedure is to some extent punitive,

as evidenced by the less-protective procedures afforded

acquitees than civil commitees; that Baxstrom, supra,

does not necessarily make that procedure unconstitutional

as a means for initially confining acquitees; but that the

2 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.

We concluded, accordingly, that there was “no room for appel-

lant’s contention 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 commitees, 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 termination does not

alter the similarity of situation between acquitees (after confine-

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

price of constitutionality is release or civil commitment

at the end of the hypothetical maximum prison term,

since that is the longest an acquitee can be confined for

punitive reasons without a denial of equal protection of

the laws.

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 acknowi-

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, 130 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 consequence of error. If

there is error in a determination of mental illness

that results in a civil commitment, a person may be

deprived of liberty although he never posed any

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

§ 24-301(d) proceduve. In the present case we deal with the post-

1970 scheme under which an acquitee has the burden of proving,

by a vreponderance 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 Adding-

ton 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.

harm to society. If there is a similar error in con-

finement of an insanity-acquitted individual, there

is not only the fact of harm already done, but the

substantial prospect that the same error, ascribing

the quality of mental disease to a less extreme devi-

ance, resulted in a legal exculpation where there

should have been legal responsibility for the anti-

social action.

The matter now being discussed is suffused with

the broad consideration that modern standards of

the insanity defense, not restricted to those who do

not know right from wrong, call for 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 abuse of the insanity defense, referred to

in Lynch v. Overholser [, 369 U.S. 705 (1962) J.

{Brown, supra at 407, 478 F.2d at 611 (footnote

omitted).

Appellant points out that Brown went on to suggest,

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

quo 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 analysis,

and Baxstrom, require, however, that when the in-

dividual has been in detention for a considerable

period of time, his continued detention vel non

should be governed by the same standard of burden

of proof as applies to civil commitments. The extent

of that period calls for sound discretion, would take

into account e.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 sen-

tence 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 commitment

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 society’s

right to any punitive gloss on confinement ends. Ac-

cordingly, 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 under-

pinning to the commitment procedure, which justifies

confinement beyond the maximum prison sentence.* We

turn to this argument.

5 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 constitutionally

preclude confining acquitees under procedures less protective than

those accorded to commitees if such confinement were “based, even

in part, on punitive considerations.” Jones, supra at 189. Thus, if

§ 24-301(d) were valid as a whelly rehabilitative procedure and

confinement, any difference from a civil commitment determination

under § 21-545(b) could only be justified on evidentiary grounds;

i.e., in contrast with a civil commitment, “the ‘release hearing’

procedure for an acquitee presumably can be somewhat abbre-

viated because of the predictive value of the initial determinations

of insanity and dangerousness at the criminal trial.” Jones, supra

at 189. Because there is authority for such analysis, see, e. g.,

II.

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 between the civil and criminal commitment schemes.

Appellant, as an acquittee, 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

brief period of observation.“ The courts have justified

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., In

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

Cal. Rptr. 553, 558 (1972) (en banc). Others have

In re Franklin, 7 Cal.3d 126, 496 P.2d 465, 101 Cal. Rptr. 553

(1972) (en banc), we interpreted appellant’s acceptance of his

confinement under § 24-310(d) as acceptance of a purely evidentiary

justification for the differences between the criminal and civil com-

mitment procedures—a justification presuming equally valid find-

ings of mental illness and dangerousness under §§ 21-545(b) and

24-301(d). See Jones, supra at 188 n.7.

In the District of Columbia, automatic confinement cannot

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

at 143, 496 P.2d at 475, 101 Cal. Rptr. at 563, the court approved

a 90-day period in California. The Model Penal Code allows six

months, ALI Model Penal Code § 4.08 (Proposed Official Draft

1962).

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 appro-

priate 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 obtained. D.C. Code 1973,

§ 21-523. Williams v. Meredith, D.C.App., 407 A.2d 569 (1979).

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 132, 135 (Me. 1971) (en banc).

These same courts, moveover, 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

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 as 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 sufficient

to justify keeping the burden of proof on the former but

not the latter. See Franklin, supra at 138, 496 P.2d at

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

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

said to imply a concession that all aspects of that proce-

dure are justified solely on evidentiary (and thus non-

punitive) grounds.”

III.

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) ;

® See, e.g., Mills v. State, 256 A.2d 752, 755-57 (Del. 1969) (up-

holding release hearing procedure using regular superior court

jury with burden of proof on acquitee; both rationales); State v.

Allen, 166 N.W.2d 752, 758 (Iowa 1969) (acquitees may be required

to prove regained sanity beyond a reasonable doubt; evidentiary

and punitive rationales); State v. Shackford, 262 A.2d 359, 366

(Me. 1970) (same; punitive rationale): Daniels v. Superintendent,

34 Md. App. 173, 180, 366 A.2d 1064, 1069 (Ct. Spec. App. 1976)

(acquitees can be required to carry burden of proof; evidentiary

rationale); State v. Taylor, 158 Mont. 323, 331, 491 P.2d 877, 881

(1971), cert. denied, 406 U.S. 978 (1972) (same; punitive ra-

tionale); In re Lee, 46 App. Div.2d 999, 1000, 362 N.Y.S.2d 635,

636-37 (1974) (district attorney may participate in acquitee’s re-

lease hearing; punitive rationale).

10 Accordingly, we retract the statement in our first opinion that

“appellant must be presumed to agree that this confinement is not

based, even in part, on punitive considerations; otherwise it would

be unconstitutional under Bazxstrom, supra; see Humphrey v.

Cady ... Jones, supra at 189.

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

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

97; u 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-

quitee could have been sentenced.” See Brown, supra at

408, 478 F.2d at 612.

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

we 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

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

civil commitment proceedings promptly after the insanity acquittal.

See Bolton, supra.

12 We understand appellant to base his argument on the hypo-

thetical maximum prison term to which the acquitee himself could

be sentenced, not simply on the maximum sentence for the par-

ticular crime involved, without regard to the acquitee’s own criminal

history. We do not, however, resolve that question here.

18 Appellant declines to question the constitutionality of § 24-

301(d) and we agree that this court should not issue an advisory

opinion on that subject. On the other hand, appellant has said that

assuming the validity of § 24-301(d), he should not be 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 constitutional while partially punitive. We agree.

Therefore, if, after examining § 24-301(d), we conclude that it is,

to some extent, punitive, we properly can refrain from evaluating

its constitutionality and, instead, can make a narrower analysis

determining whether such punitive procedures can be imposed for

an indefinite period.

an acquitee’s mental illness and dangerousness at the

time of the offense are consistently such powerful evi-

dence of illness and dangerousness later (i.e., at the time

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

of continuing insanity in every case. See Brown, supra

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 civil 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 character at

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

civil commitees, that acquitees be released (or civilly

committed) no later than the end of the maximum prison

term they could have received if criminally convicted.

We agree.

According to Baxstrom, supra at 111, el qual 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-

fication is made” (citation omitted). Accord, Bolton,

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

„Compare D.C. Code 1973, f 24-301(d) with § 21-545(b).

tially punitive rationale for the criminal commitment

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

supra, the criminal commitment scheme might survive

equal protection scrutiny under Bazxstrom, 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 confine nent must depend, constitutionally, on a

de novo civil commitment. See Humphrey, supra at 510

11; Baxstrom, supra at 110-11; Brown, supra at 408,

478 F. ad 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

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

initiate civil commitment proceedings against appellant.

Once those proceedings have been initiated, he shall be

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-

15 It 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, no matter how long that

may be. We perceive no basis for the Brown court’s view that the

punitive justification for § 24-301(d) may expire short of the

maximum sentence (and “would generally not exceed five years”).

Id. at 408, 478 F.2d at 612.

ings during this 30-day period, he shall 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 com-

mitment.

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.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 11918

MICHAEL A. JONES, APPELLANT

UNITED STATES, APPELLEE

On Petition for Rehearing En Banc

(Hon. Eugene N. Hamilton, Trial Judge)

(Argued En Banc Sept. 8, 1980 Decided May 29, 1981)

Before NEWMAN, Chief Judge, and KELLY, KERN,

GALLAGHER,* NEBEKER, HARRIS, MACK, FER-

REN and PRYOR, Associate Judges.

Opinion for the court by Associate Judge KELLY.

Dissenting opinion by Associate Judge FERREN, with

whom Chief Judge NEWMAN and Associate Judge

MACK join.

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, f 24-301 (d). In February 1977, he appealed

*Judge Gallagher was an Associate Judge of the court at

the time of argument. His status changed to Associate Judge,

Retired, on February 27, 1981.

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

sons found not guilty by reason of insanity (acquittees), reads:

(d)(1) If any person tried upon an indictment or informa-

tion for an offense raises the defense of insanity and is ac-

quitted solely on the ground that he was insane at the time

of its commission, he shall be committed to a hospital for the

mentally ill until such time as he is eligible for release pursuant

to this subsection or subsection (e).

(2) A person confined pursuant to paragraph (1) shall have

a hearing, unless waived, within 50 days of his confinement to

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),

determine whether he is entitled to release from custody. At

the conclusion of the criminal action referred to in paragraph

(1) of this subsection, the court shall provide such person with

representation by counsel—

(A) in the ease of a person who is eligible to have coun-

sel appointed by the court, by continuing any appointment

of counsel made to represent such person in the prior

criminal action or by appointing new counsel; or

(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 counsel, and the

prosecuting attorney and hold the hearing. Within ten days

from the date the hearing was begun, the court shal! determine

the issues and make findings 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 confined is entitled to his release from custody,

either conditional or unconditional, the court shail 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.

2 Subsection 21-545(b), concerning involuntary civil commitment,

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 himself or other per-

sons if allowed to remain at liberty, the court may erder his

hospitalization for an indeterminate period, 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 member 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 impancied, upon

order of the court, from the jurors in attendance upon other

branches of the court, who shall perform the services in addi-

tion to and as part of their duties in the court.

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 ab-

stention from a challenge to his initial commitment, held

that appellant had no right to the relief requested. Jones

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

pellant petitioned for rehearing or rehearing en banc, ob-

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

abstention from a challenge to the initial commitment

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

thereafter granted and a second opinion issued holding

that appellant was entitled to immediate release unless

the government civilly committed him pursuant to D.C.

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

cedure is to some extent ‘punitive’” and it would be a

denial of equal protection to confine appellant under

criminal commitment procedures beyond his hypothetical

maximum prison sentence. Jones v. United States, D.C.

App., 411 A.2d 624 (1980). The government petitioned

for rehearing en banc, disputing the determination that

the District of Columbia commitment scheme for insane

criminals is punitive. Its petition was granted and the

case was reheard by the en banc court. Since our pre-

vious opinions were vacated, we consider anew appellant’s

equal protection claim and hold that he is not entitled to

automatic release from St. Elizabeths upon the expira-

tion of his hypothetical maximum prison sentence unless

civil commitment proceedings are instituted by the gov-

ernment.

Appellant’s commitment resulted from a September

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

mitted to St. Elizabeths because of a court-ordered com-

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

*See D.C. Code 1973, f 24-301(a). The psychologist’s report

stated that appellant was competent to stand trial, but that he had

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

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

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

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

held a second hearing during which appellant raised the

argument 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.“

“signs and symptoms of a severe mental disorder, including audi-

tory hallucinations” and that he should be hospitalized at St. Eliza-

beths for treatment.

See note 1 supra.

5In an April 23, 1976 letter, the Superintendent of St. Eliza-

beths reported that Jones was suffering from schizophrenia, para-

noid type, and was on medication. Tie letter also stated that “Mr.

Jones is in need of further hospitalization, and by virtue of his

mental illness, he would be a danger to himself and to others if

released into the community at this time.”

*A subsequent motion for unconditional release under § 301(k)

was denied in March of 1977. Three months later, however, appel-

lant was granted conditional release on terms recommended by

St. Elizabeths’ staff, 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 retrans-

ferred to the forensic division.

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 appellant 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 acquittee might have re-

ceived determines 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, D.C.

App., 365 A.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 F.2d 458, 461 (1959), when Judge Bazelon

stated that

(T]he basic policy underlying the statute . . . as we

read the legislative history, is to provide treatment

and cure for the ‘ndividual in a manner which af-

fords reasonable assurance for the public safety. .. .

More recent cases reiterate 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

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

App. D. C. 1, 395 F.2d 642 (1968),” have not altered its

7 Bolton held that acquittees are entitled to a hearing “substan-

tially similar” to the hearings afforded civil commitees before

they are indeterminat ly confined. The implications of this holding

are more fully discussed below.

original 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

sta‘ute demonstrate that a punitive rationale has no part

in the commitment of persons acquitted by reason of in-

sanity. We agree that

[ijn the light of (the legislative] purpose [of § 301},

we must reject the District Court’s suggestion that

appellant is a “prisoner.” Nothing in the history of

the statute—and nothing in its language—indicates

that an individual committed to a mental hospital

after acquittal of a crime by reason of insanity is

other than a patient. The individual is confined in

the hospital for the purpose of treatment, not punish-

ment; 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

acquitted 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

because 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, see D.C.

Code 1973, § 24-301(j) (establishing procedures for plead-

ing insanity), and raise serious constitutional issues.

The regulatory 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 n.64, 395 F.2d at 563 n.64; Lake v. Cameron, 124

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

banc).

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

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

boundaries of lawful punishment for persons found crim-

inally responsible for specified offenses. Not even con-

victed criminals are automatically sentenced to the maxi-

mum applicable term of incarceration. Subsection 301

(d) commitments are neither expressly nur 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:

In Dizon v. 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

Elizabeths bears a special responsibility for assuring that informa-

tion regarding the patient’s condition is fully presented to the Dis-

trict Court, and that the court understandingly considers the infor-

mation presented.”

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

analytically useful, that appellant is actually challenging the inde-

terminate length of his commitment at St. Elizabeths, rather than

only his “continued” confinement there. Equal protection, if vio-

lated at all, would be just as well put into question at the inception

of the commitment since it effectively means an indefinite period

of confinement.

Confinement of the mentally ill rests upon a basis

substantially different from that which supports con-

finement 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

commitment. Confinement of the mentally ill, how-

ever, 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 men-

tally 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 out-

patient treatment can be fashioned that will ade-

quately protect the interest both of the patient and

the public. {Footnotes omitted. ]

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

pitalization can be established by statute or court order

ignores the most basic precepts of medicine and psy-

chiatry. Unfortunately, the present 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-

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

authorities cited therein, holding that the lack of certainty and

the fallibility of psychiatric diagnosis make proof of insanity by

clear and convincing evidence constitutionally sufficient. Addington

also recognized that “[i]n a civil commitment state power is not

exercised in a punitive sense.” Jd. 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 Addington’s reasoning should

apply with equal force to commitment of acquittees.

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

treating and rehabilitating mental patients who happen

to have been acquitted of crimes by reason of insanity.

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

ported by our recent decision in United States v. Ed-

wards, D.C.App., —— A.2d —— (Nos. 80-294 & 80-401,

May 8, 1981) (en banc), where the contention that in-

carceration inevitably constitutes punishment was re-

jected. Though commitment of acquittees is in no sense

incarceration, the principle that the penal character of a

statute depends on its underlying nature and whether

it is reasonably supported by a legitimate state interest,

applies equally to the analysis of commitment statutes."

There is no evidence that the District of Columbia statu-

11 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 affirmative sability or

restraint, whether it has historically been regarded as a pun-

ishment, 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 already 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 purpose assigned are all relevant to the in-

quiry, and may often point in differing directions.” [Id. at

537-38 (quoting 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 purpose.. . Absent a show-

ing of an expressed intent to punish on the part of detention

facility officials, that determination generaliy will turn on

“Whether an alternative 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].” IId. at 538 (quoting Kennedy v. Mendoza-

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

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

tory scheme for commitment of insane criminals is any-

thing but a regulatory, prophylactic statute, based on a

legitimate 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

proof of insanity by a preponderance of the evidence.

Since the crime is relevant only insofar as it indicates

dangerousness, not evil or criminal responsibility, the

presumption of ontinuing dangerousness, which is re-

buttable by the acquittee, is both reasonable 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 on the legitimate non-punitive interests of

the District of Columbia.

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-

tection. 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-

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

justifiable by reason of the situational differences be-

tween acquittees and commitees.

Our analysis begins with the Supreme Court case of

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

12 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).

that equal protection requires that a prisoner to be

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 Baxstrom’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. Id. 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-

ment schemes be relevant to the classification and that

any differences not be substantial. We therefore agree

18 Specht held that sentencing pursuant to Colorado’s Sex Offend-

ers Act was criminal punishment and violated due process because

it made a conviction for a sex offense the basis of indeterminate

sentencing without affording the defendant a hearing on the issue

of his mental illness, dangerousness or recidivism.

14 Subsection 301(j)’s shift in the burden of proof was upheld

against constitutional attack 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).

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.” The 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 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 classification is made.” Bar-

strom, supra et 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.” Bolton, 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.

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

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

ties. First, the substantive standard of commitment is

identical under both statutes. The twofold proof require-

ment of mental illness and dangerousness varies only in

15 See also State v. Krol, 68 N.J. 236, ——, 344 A.2d 289, 298

(1975) (questioning the equal protection test applicable to differ-

ences in commitment schemes required by Barstrom, supra, and

Jackson v. Indiana, supra) and Novak, Realigning the Standards of

Review Under the Equal Protection Guarantees—Prohibited, Neu-

tral and Permissive Classifications, 62 Gro. L. 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).

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. See Vitek v.

Jones, 445 U.S. 480 (1980) (recognizing a prisoner’s

due process rights to a hearing before transfer to a

mental health facility); Specht v. Patterson, supra.“

16 The two-prong test is explicitly stated in § 21-545(b); how-

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

lease. But it is reasonable to assume that the same standard gov-

erns § 301(d) release hearings by reference to § 24-301(e), which

states that entitlement to release, upon hospital certification, de-

pends on a showing that the acquittee is no longer mentally ill or

dangerous.

17 Justice White approvingly listed the following procedures out-

lined by the Nebraska District Court as the minimum required

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 prisoner is

made of the evidence being relied upon for the transfer and

at which an opportunity to be heard in person and to present

documentary evidence is given;

C. An opportunity at the hearing to present testimony of

witnesses by the defense and to confront and cross-examine

witnesses called by the state, except upon a finding, not arbi-

trarily made, of good cause for not permitting such presenta-

tion, 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;

F. 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 confronted

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 differ-

ences between the two groups immediately prior to

the respective hearings. The civil commitment ques-

tion, as to any potential commitee, is of first im-

pression, whereas the “release hearing” procedure

for an acquitee presumably can be somewhat abbre-

viated because of the predictive value of the initial

determinations of insanity and dangerousness at the

criminal trial. (That predictive value rests on the

defendant’s own prior proof of his insanity by a

preponderance of the evidence—by a jury trial if he

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

therefore, represents a de novo process, the § 24-301

(d) hearing is an updating process to determine 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 re-

habilitation. Given these situational differences be-

tween acquitees and potential commitees immediately

piror 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.

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

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.)

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 Baxstrom 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 acquitee has had a right to a jury determination of

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

tee’s mental illness is initially established by affirmative

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 States, D.C.App., 403 A.2d 306, 310 (1979). In

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

the court stated that “[s]ince 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 of 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.’” Id. at

50, 543 F.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 significant since the continuation of

18 We do not compare the differences in post-commitment proce-

dures since they are not covered in these subsections and appel-

lant’s claim is based on the alleged invalidity of his confinement

under subsection 301(d).

20 Appellant’s waiver of the right to a jury at his criminal trial

does not affect our argument.

these attributes is a rational and permissible evidentiary

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

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

of this presumption was recognized:

The rational justification for placing the burden

of proof on a commitee is that his mental illness and

dangerousness have previously been convincingly es-

tablished. In light of those established facts, the

law gives effect to a presumption of continuity of

status. It comports with normal perceptions of re-

ality—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-

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

also 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 delinquence proceedings or criminal prosecu-

tions where “the basic issue is a straightforward factual

21 It 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 ‘s pleaded, informs the jury that the conse-

quence of an acquittal by reason of insanity will be automatic com-

mitment of the defendant to St. Elizabeths, followed by a release

hearing within 50 days. The jury is also instructed that at this

hearing the defendant 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).

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

continued: “Whether the individual is mentally ill and

dangerous to either himself or others and is in neec of

confined therapy turns on the meaning of the facts which

must be interpreted by expert psychiatrists and psy-

chologists.” Id. (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, because (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-

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

release hearing is not a substantial difference vis-à-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

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

acquittee 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 was the one to advocate the fact of his past

insanity. Automatic § 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

affirmative 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-

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-

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

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.

22 Since appellant has not challenged his initial commitment, 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, In re Hodges, D.C. App., 325 A.2d 605 (1974)

(overruled in In re Nelson, supra). The greater disparity in proof

between the two commitment standards that existed when appellant

was first committed would not alter our conclusion that the differ-

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

substantial as to violate equal protection.

In Bolton, supra at 10 n.50, 395 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 has 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 facility” 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

Humphrey 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

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-

sun 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-

23 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 de-

fendant subject to the Wisconsin statute, since we have determined

that there is no punitive element to § 301(d) commitments.

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.” Id.

at 738.

Appellant’s reliance on the District of Columbia Cir-

cuit 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-

acquittal judicial hearing. The Court of Appeals in

Brown upheld the preponderance standard applied, jus-

tifying the difference in the level of proof vis-a-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

24 These cases are not formally binding on this court because

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).

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

calls for sound discretion, would take into account, e. g.,

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.” Id. 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-

tations on the duration of confinement based on hypo-

thetical 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.

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. § 24-301 (d) (2).

Our colleagues in the majority conclude that these dif-

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.

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-

1 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 -545, 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

hearing. 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 insanity is question-

able, 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 puni-

tive rationales in justifying less comprehensive review of acquitees

at ‘release hearings’ than is afforded civil commitees at such pro-

ceedings.” 411 A.2d at 628-29 (footnote omitted). Differences such

as a ~hift in the burden of proof and withdrawal 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 commitment process.” Jd. at 630. We con-

cluded, therefore, that “the difference[s} between criminal and civil

commitment procedures cannot be justified on purely evidentiary

grounds.” Id.

stitutionally sound. It would follow that, “because the

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.

2In our division opinion on rehearing, we summarized our

analysis:

Assuming the best case for the constitutionality of § 24-

301(d), appeilant argues that its partially punitive character

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

commitees, that acquitees be released (or civilly committed) no

later than the end of the maximum prison term they would

have received if criminally convicted. We agree.

According to Baxtrom [v. Herold, 383 U.S. 107, 111 (1966)],

“Te]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 F.2d 642, 651 (1968)]. On the basis

of the partially punitive rationale for the criminal commit-

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

supra, the criminal commitment scheme might vive equal

protection scrutiny under Baxstrom, supra, eve. though the

procedure for confining civil commitees provides greater pro-

tection for the individual at the utset (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 hypo-

thetical 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, constitu-

tionally, on a de novo civil commitment. See Humphrey [v.

Cady, 405 U.S. 504, 510-11 (1972)]; Bazxstrom[, 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).

II.

The Supreme Court has identified several factors for

use in determining whether a statute is punitive. A court

first should look for “objective manifestations of congres-

sional purpose.” Kennedy v. Mendoza-Martinez, 372 US.

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:

Whether the sanction involves an affirmative dis-

ability or restraint, whether it has historically

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 pun-

ishment—retribution and deterrence, whether the be-

havior to which it applies is already 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 al-

ternative purpose assigned are all relevant to the in-

quiry, and may often point in differing directions.

[Kennedy, supra at 168-69 (footnotes omitted) .]

Accord, Bell, swpra 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, Ken-

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

a 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-

miteees. 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 civi!

commitment proceeding, which came to be known as

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

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

(1973), 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 bane 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-

In reaching this result, the court relied on Barstrom v. Herold,

383 U.S. 107 (1966), and Specht v. Patterson, 386 U.S. 605 (1967).

The circuit court expressly modified its earlier decisions in Over-

holser 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

(1 60); and Overholser v. Leach, 103 U.S.App.D.C. 289, 257 F.2d

667 (1958), cert. denied, 359 U.S. 1013 (1959). Bolton, supra at

12, 395 F.2d at 653.

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 pu»

nitive purpose of the previous statute?

B. The Present Statute and Its Construction

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

301(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 Bolton “permits dangerous crimi-

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

and commitment to a hospital.” HOUSE CoMM. ON THE

DISTRICT OF COLUMBIA, DISTRICT OF COLUMBIA COURT

REFORM AND CRIMINAL PROCEDURE ACT OF 1970, Section

207—Insane 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 United 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 olton 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.” Jd. 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.60 (2d Cir.

1966), Congress intended the substantial likelihood of

indefinite confinement to provide an effective deterrent

to those tempted to misuse the insanity defense to avoid

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; Ragsda’e 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.*

4 My colleagues’ implication that altering the burden of proof

and denying acquitees a right to jury trial are minor procedural

distinctions from civil commitment, see ante at 15-21, is incon-

sistent 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 distinc-

tion from civil commitment; it is designed to make it more difficult

for the acquitee to gain freedom. Id. at 91-92. Indeed, where proof

is often difficult to assess, see Addington v. Teras, 441 U.S. 418, 429

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

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

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

tions of mental capacity are at issue is also in direct conflict with

our ruling in Bethea, supra, which emphasized that, despite the

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 hospital

for the mentally ill, Saint Elizabeths. Id., § 24-301 (d).

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

this distinction in treatment precisely because it recog-

nized that Congress “intended that all defendants ac-

quitted by reason of insanity should be distinguished from

all other persons, including persons civilly con mitted for

mental diseases or vetardation.” Jd. at 381, 553 F.2d at

115 (emphasis in original). In Jackson, the court justi-

impact of psychiatric testimony, it is for the jury, not the psychi-

atric expert, to decide the accused’s mental state. Id. 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 Unit) States Court

of Appeals for the District of Columbia Circuit in United States

v. Ecker, 177 U.S.App.D.C. 31, 543 F.2d 178 (1976), cert. denied,

429 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 determina-

tion that the patient will not in the reasonable future endanger

himself or others.” Id. at 40, 543 F.2d at 187 (emphasis in the

original).

ety. , 553 F.2d at 121,

Apropos of Jackson, this difference in treatment of cer-

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

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-

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.’ Id. at 52, 543 F.2d

5 The circuit court, more than once, has relied on the nature of

the underlying offense to justify the consequences of confinement

under § 24-301(d). In United States v. Jackson, supra, the court

emphasized that the defendant had been acquitted by reason of

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 Hum-

phrey, supra at 511) (emphasis added). Because Ecker

could have been incarcerated, however, for a life sentence

if not acquitted by reason of insanity, the differences in re-

lease procedures (between acquitees and commitees) were

therefore justifiable. Finally, the court rejected the hos-

pital recommendation by saying that even if the hospital

were correct “that a step-by-step reentry into the com-

munity [was] essential to Ecker’s continued improve-

ment,” an acquitee “who has committed violent criminal

acts” has “no right to treatment at the community’s peril.”

Id. at 52-53, 543 F.2d 199-200.

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 I] 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 rc in the nature of

insanity of first degree burgiary and rape, in contrast with mere

theft of small sums which would “not indicate excessive danger-

ousness.” Jd. at 387, 553 F.2d at 121.

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 medica] reasons

alone. They 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-

ant. Because of this punitive purpose, the maximum statu-

tory period of confinement becomes relewant, for at that

point society no longer has a valid 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. ad at 396; note 2 supra.*

* Although the foregoing discussion is sufficient to demonstrate

the congressional purpose underlying D.C. Code 0973, § 24-3m1, I

note briefly that the other Kennedy factors confirm the punitive

intent.

By definition, confinement to a mental institution is “an affirma.

tive disability or restraint,” id. at 168, even more perhaps than

III.

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 equal protec-

tion of the laws.’ Michael Jones should be released unless

civilly committed.

imprisonment, see Vitek v. Jones, 445 U.S. 480, 493-94 (1980),

given the indefinite duration and the stigma. See 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. See, e.g., Jackson v. Indiana, supra;

Humphrey, supra; Specht, supra; Baxstrom, supra.

Criminal confinement also comes into play “only on a finding of

scienter,” Kennedy, supra at 168; see Bethea, 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 also “promote[s! the traditional aims of punishn:ent-—

retribution and deterence,” id., for, as already indicated, Congress

and this court have noted a desire to prevent 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, incapacitation

and rehabilitation. See United States v. Brown, 381 U.S. 437, 458

(1965) (“Punishment serves several purpose: retributive, rehabili-

tative, deterrent—and preventive”). See generally J. VORENBERG,

CRIMINAL LAW & PROCEDURE 44-57 (1975).

Finally, for reasons already discussed, I do not believe there is

a wholly nonpunitive, “alternative purpose,” Kennedy, 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 nonpunitive, 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 maxi-

mum confinement for one year.

7 When a court confronts different procedural safeguards afforded

to different classes of individuals committed to mental institutions,

SUPREME COURT OF THE UNITED STATES

No. 81-5195

MICHAEL JONES, PETITIONER

UNITED STATES

ON PETITION FOR WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

ON CONSIDERATION of the motion for leave to pro-

ceed herein in forma pauperis and of the petition for writ

of certiorari, it is ordered by this Court that the motion

to proceed in forma pauperis be, and the same is hereby,

granted; and that the petition for writ of certiorari be,

and the same is hereby granted.

January 11, 1982

concerns of equal protection and due process become interrelated.

See Jackson v. Indiana, supra at 731; cf. Humphrey, supra at 511

(1972) (noting with favor the state court’s consideration of Equal

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 concern, although there

is a serious question here. I note, moreover, 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 ciass of individuals.

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.