Jones v. United States

pay electricity for a unit of excess its

generating capacity, the Commission con-

cluded that it reasonably represents

marginal cost to PEPCO of additional ca-

pacity.42 The Commission made an inde-

pendent assessment of the reasonableness suggested charge minimum adopt

based its decision to the refinement

on substantial We, evidence in the record.

therefore, procedural find no or substantive

defect in the adopt Commission’s decision to generation minimum and transmission

charge capacity based the PJM defi-

ciency charge.

Recognizing experimental nature of

TOD rates scope and our circumscribed

review, we conclude that the Commission’s

adoption of ratemaking the TOD principles

articulated in repre- Orders 7002 and 7034

sents a step implement- reasonable toward

ing potentially pricing effective TOD sys-

tem and that the Commission’s decision

finds support substantial in the record. Pe-

titioners have failed to demonstrate that

the Commission’s decision contains a “fatal

flaw.” We therefore affirm the decision of

the Commission.

Affirmed. JONES, Appellant,

Michael A. STATES, Appellee.

UNITED

No. 11918.

District of Appeals. Columbia Court of

Argued En Sept. Banc 1980. May

Decided 1981. sylvania-New Jersey-Maryland (PJM) power See Notes 10 38& for a discussion of relationship pool. between PEPCO and the Penn- Wasserstrom,

Silas J. Public Defender Service, Washington, C., appellant. D. Farrell, Atty., W. Michael Asst. U. S. C., Washington, D. with whom F. C. Charles Ruff, Atty., Terry John Oscar U. A. S. Altshuler, Washington, Attys., U. S. Asst. C., petition, appellee. D. were Corcoran, Washington, D. Larry Martin C., as amicus filed a brief curiae. NEWMAN, panel opinion, Judge, Before Chief Our first which relied on KELLY, express challenge abstention KERN, GALLAGHER,* from a NEBEK commitment, appellant his initial held that ER, MACK, HARRIS, FERREN Jones requested. had no to the relief PRYOR, Judges. Associate States, D.C.App., United 396 A.2d 183 (1978). Appellant petitioned rehearing KELLY, Judge: Associate banc, rehearing objecting pan- en Appellant A. Michael Jones is a mental unfairly on his el’s decision based absten- patient at he Hospital St. Elizabeths where challenge tion from to the initial commit- 1976, pur- has been since committed March 24-301(d)(2). ment under D.C.Code suant 24-301(d).1 to D.C.Code Rehearing granted was thereafter and a February 1977, appealed he order from an holding opinion second issued by Judge Eugene denying N. Hamilton his was entitled to immediate release unless the request for release Eliz- immediate from St. government civilly pursuant him committed abeths or in the alternative com- for civil 21-545(b) to because D.C.Code the procedures mitment in accordance with the hearing procedure to “release is some ex- ” 21-545(b),2 set forth in D.C.Code ‘punitive’ tent and it be a would denial of basing challenge his to his con- continued equal protection appellant to confine under argument finement on the that detention procedures beyond criminal commitment his beyond the maximum for which he hypothetical prison maximum sentence. imprisoned States, could have for the offense Jones v. United D.C.App., 411 A.2d acquitted equal of which he was denies him government petitioned The protection banc, of the laws. en rehearing disputing determina- the * Judge Gallagher Judge days hearing begun, anwas Associate the from date the was argument. court at the time of status His the court shall determine the issues and changed ary Judge, Retired, to Associate Febru- findings on make of fact and conclusions law respect person thereto. The confined proof. shall have the If burden of the court 24-301(d), 1. Subsection the which controls by preponderance finds of the evidence that by guilty commitment of found not person the confined is entitled to his release insanity (acquittees), reason of reads: custody, from either or uncondi- conditional (d)(1) any person upon If tried indict- tional, the court shall such order enter ment or information an offense raises the may appear appropriate. solely acquitted defense of and is on (3) appeal may An from an be taken order ground the he was that insane at the time of paragraph (2) entered under the to court hav- commission, its he shall be committed to a ing jurisdiction judgments to review final hospital mentally ill until time as such entering the the court order. eligible pursuant he is to this (e). subsection or subsection 21-545(b), concerning involuntary 2. Subsection person para- pursuant A confined commitment, reads, part: pertinent civil in graph (1) waived, hearing, shall have a unless days person within 50 mine of his deter- jury confinement to If or finds the is the court that is and, whether he entitled to release from illness, mentally ill because of custody. conclusion At the of the criminal likely injure persons if himself or other paragraph (1) action subsection, referred in of this liberty, may to remain the allowed court provide per- court shall the such hospitalization order his for an indeterminate representation by son with counsel— period, any or order other alternative course (A) eligible person in the case who is believes of treatment which the court will be court, appointed by to have counsel the person in best interests of or of the the continuing any appointment of counsel made Commission, public. The member or a there- represent person prior such of, competent compellable be wit- shall counsel; by appointing action or new or hearing jury pursuant held nesses at trial (B) person in the case of a is not who chapter. jury any be used in to this eligible appointed to have counsel jury case where trial is demanded court, by assuring representation by retained upon chapter impaneled, shall order counsel. If the cause notice of the court, jurors from in attendance of the upon waived, hearing is not shall court court, branches of who shall other hearing upon to be served perform the services in to and as addition counsel, person, prosecuting his part their duties in the court. attorney hearing. ten and hold Within

tion that the Judge District of Columbia commit- appellant’s Hamilton denied ment scheme puni- or, for insane criminals motion for immediate release petition granted alternative, commitment, tive. Its was and the case civil and contin was reheard the en ued his banc court. indefinite confinement at Eliza- Since St. vacated, previous opinions timely our appeal were we beths. A from this order was con- appellant’s equal protection February sider filed on anew 1977.6 claim and hold he is not entitled to analyzing appellant’s equal pro- Before automatic release from St. Elizabeths claim, necessary tection we deem it to re- expiration hypothetical maximum ject any suggestion that pur- confinement prison sentence unless civil commitment 301(d) punitive suant to subsection proceedings govern- are instituted recognize nature. We never ment. explicitly assertion, made such an but that implication argument (and underlies his cer-

Appellant’s commitment resulted from a tainly prior opinions) length our that the September charge attempted petit prison sentence which an larceny. He was first admitted to St. Eliza- might have received determines when he is competen beths because of a court-ordered entitled to release or civil commitment un- cy examination.3 On March der Title 24 of the D.C.Code. We conclude stipulated facts as to the crime and as to there is no basis for insanity, appellant acquitted by any respect. charge by court of the insanity. 25, 1976, May Judge On James A. Wash This court’s decision in Bethea v. United

ington a “50-day hearing” pur held States, 64, D.C.App., (1976), 365 A.2d 90 1973, 24-301(d)(2)4 suant to D.C.Code § and denied, 911, 2979, cert. 433 U.S. 53 appellant’s continued confinement at St. (1977), L.Ed.2d 1095 “Congress noted that Elizabeths prove by because of his failure to struck a careful balance the inter between preponderance of the evidence that he. est of the individual and those of the com longer mentally was no dangerous ill or munity,” in the enactment of District of himself and hearing others.5 A further was persons Columbia commitment scheme for 29, date, set for November 1976. On that acquitted by insanity. pur The Judge hearing pose Hamilton held a second dur behind this careful balance was ex ing appellant argument plained Hough States, raised the v. United 106 U.S. 192, 195, 458, 301(d) App.D.C. that his confinement under could 271 F.2d 461 § Judge beyond hypothetical not extend his when Bazelon stated that maxi prison mum sentence and that he was policy underlying basic the statute [T]he therefore entitled to release. The court legislative ... as we read history, government why ordered the to show cause provide treatment and cure for the appellant civilly should be released or individual in a manner which affords rea- 1973, committed under D.C.Code 21- public § sonable assurance for the safe- 545(b). hearing After a February ty. .. . 1973, 24-301(a). psy- illness,

3. See § D.C.Code The and virtue of his mental he would be chologist’s report danger stated that was to himself and if to others released trial, competent “signs to stand community but that he had into the at this time.” disorder, symptoms and of a sever mental in- cluding auditory hallucinations” and that he subsequent 6.A motion for unconditional re- hospitalized should at St. Elizabeths for 301(k) lease under § was denied March of treatment. later, however, appellant 1977. Three months granted conditional release on terms rec- supra. 4. See note 1 staff, allowing ommended St. Elizabeths’ daytime overnight visits into the communi- 23, letter, April Superintendent In an 1976 ty. He was also admitted into the civil division reported of St. Elizabeths that Jones was suf- hospital, though disruptive of the as a result of fering schizophrenia, paranoid type, from behavior, he was retransferred to the forensic was on medication. The letter also stated that division. hospitalization, “Mr. Jones is in need of further

369 More pur recent cases reiterate the dual who has acquitted of the crime pose 301(d) first, the treatment States, charged. [Hough supra v. United recovery second, patient, 196, 271 F.2d at 462.] protection society patient. and the Col Society may not excuse a defendant’s crimi- Cameron, 306, 308, lins v. U.S.App.D.C. 126 nal behavior because of his and at (1967); 377 F.2d 947 Overholser v. punish invoking same time him for O’Beirne, 267, 269, U.S.App.D.C. 112 302 insanity defense. This would nullify that (1961); Ragsdale v. Overhol defense, contrary express legislative in- ser, U.S.App.D.C. 281 F.2d tent, 1973, 24-301(j) (estab- see D.C.Code The 1970 amendments lishing procedures pleading insanity), 301(d), response enacted in to the decision and raise serious constitutional issues. Harris, in Bolton U.S.App.D.C. regulatory The nature of is also (1968),7 F.2d 642 origi have not altered its evidenced the non-adversarial purpose. nal character Jackson, See United States v. of commitment U.S.App.D.C. 375, 381, parties, decisions. All in 109, 115 553 F.2d (1976). Indeed, cluding government, hospital8 the Bolton decision inesca pably leads to nonpuni- presenting the conclusion assist the facts tiveness. This require is because Bolton’s relevant proper determination of the separate judicial ment of a hearing before conditions and treatment for the insanity indeterminate commitment was intended to acquittee. Ecker, See United States v. punitive undo the aspects attending the for U.S.App.D.C. 31, 45, 543 F.2d merly automatic connection between the denied, cert. guilt determination of and the commitment (1977); Bolton v. Har pleaded defendant who insanity. ris, n.64, n.64; at 12 395 F.2d at 563 Cameron, Lake exclusively pro remedial and (1966) (en banc). goals tective of the statute demonstrate that a part rationale has no in the Furthermore, plain compels reason commitment of acquitted by reason rejection appellant’s reliance on hypo insanity. agree We prison thetical maximum term as artificial light legislative] purpose [i]n [the meaningless. Statutory maximum sen 301], reject we must [of District tences have no relationship purposes suggestion Court’s is a of mental care and They treatment. “prisoner.” Nothing in the history of the rather, intended to set the outer boundaries nothing statute —and in its language —in punishment lawful found dicates that an individual committed to a criminally responsible specified offenses. hospital mental acquittal after of a crime Not even convicted criminals are automati is other than a cally applicable sentenced to the maximum patient. The individual is confined in the term 301(d) hospital incarceration. Subsection purpose of treatment not punishment; expressly commitments are neither length nor im of confine governed pliedly ment is solely by statutory related to maximum sen considerations of his public contrary, 301(d) condition and the tences. To the safety. contem Any preoccupation by plates the District Court an indeterminate of confine punishment with the need of treatment, depending for crime is ment and on when place out of dealing with an individual patient sanity has recovered his or no acquittees 7. Bolton held reversing acquit- are entitled to a the dismissal of an hearing “substantially hearings corpus petition, similar” to the tee’s habeas stated that “Saint they afforded civil committees before special are inde- responsibility Elizabeths bears a for as- terminately implications confined. The of this suring regarding patient’s that information holding fully are more discussed below. fully presented condition is Court, to the District understandingly court con- Jacobs, U.S.App.D.C. In Dixon v. presented.” siders the information the circuit court longer poses danger to himself or makes generally impossible others.9 it predict ei- Jacobs, As Dixon v. ther required time to rehabilitate explains: patient, possible, mental if at all or at what

Confinement mentally point of the ill danger rests he will cease to himself upon substantially a basis different from or Only ongoing others. psy- medical and supports that which confinement of those hope chiatric evaluation offer a realistic case, convicted of crime. In the latter prognosis.10 Therefore, such reference to exceptions, continuing rare va- hypothetical either a prison maximum sen- lidity of solely confinement rests tence, even judicially or limited com- validity of the initial commitment. Con- mitment term completely would refute the ill, finement mentally however, of the statutory purpose 301(d) and would depends only upon validity of the any attempt frustrate at treating and reha- initial commitment but also the con- bilitating patients happen who tinuing patient. status Specifical- acquitted have been of crimes reason on ly, statutes, under our he must be re- insanity. hospital leased longer from the if he is no ill; mentally if, although he remains Our conclusion that is not ill, mentally longer he is no “likely to punitive supported by our recent decision injure or, persons”; himself or other Edwards, in United D.C.App., States v. patient desire, should the so if a course of (Nos. A.2d 80-294 May & outpatient treatment can be fashioned 1981) (en banc), where the contention that that will adequately protect the interests inevitably incarceration punish constitutes patient both of public. and the rejected. ment was Though commitment of [Footnotes omitted.] incarceration, is in no sense principle notion acquit- penal that the duration of an that the character of a stat hospitalization tee’s depends can be established ute on its nature and underlying statute or ignores court order the most ba- whether reasonably supported by it precepts sic of medicine psychiatry. legitimate interest, applies equally state Unfortunately, state of the art the analysis of commitment statutes.11 say, 9. Thus it would be more accurate to tors relevant to the determination of whether a certainly useful, analytically appel- more statute is are: actually challenging lant is length the indeterminate “Whether the sanction involves an affirma- Elizabeths, of his commitment at St. restraint, disability tive whether it has rather than his “continued” confinement historically regarded punishment, as a Equal protection, all, there. if violated at play only whether it comes into on a just put question would be as well into at the scienter, operation pro- whether its will inception effectively of the commitment since it punishment— mote the traditional aims of means an indefinite of confinement. deterrence, retribution and whether the be- crime, applies already havior to which it is a Texas, Addington 418, 10. See 441 U.S. 430- purpose whether an alternative may rationally to which it 31, 1804, 1811-12, 99 S.Ct. 60 L.Ed.2d 323 assignable be connected is therein, holding and authorities cited it, appears and whether it excessive rela- certainty fallibility that the lack of psychiatric diagnosis and the of purpose assigned tion to the alternative proof insanity by make of inquiry, may all relevant often convincing constitutionally clear and evidence point differing directions.” [Id. Addington recognized sufficient. also that (quoting Kennedy 99 S.Ct. at 1873 za-Martinez, v. Mendo- power a civil commitment “[i]n state is not 144, 168-69, 372 U.S. 83 S.Ct. 428, punitive exercised in a sense.” Id. at 99 554, 567-68, (1963)).] 9 L.Ed.2d 644 Burger’s S.Ct. at 1811. While Chief Justice The Bell case also noted that opinion per did not deal with commitment of disability A court must decide whether guilty by insanity, sons found not a imposed purpose punishment of or 301(d) civil, actually § commitment is a not a whether it is but incident of some other proceeding Addington’s reasoning criminal legitimate government purpose .... Absent apply equal should with force to commitment showing expressed punish a of an intent to acquittees. of officials, part facility on the of detention Wolfish, 520, 537-38, generally 11. See Bell v. 441 U.S. determination will turn on “wheth- (1979). S.Ct. purpose 60 L.Ed.2d 447 Fac- er an alternative to which re- [the validity appellant’s equal protection is no of of There evidence that the District statutory depends Columbia scheme commitment on claim whether differences anything regu- insane 301(d) of criminals is but a between § statute, latory, prophylactic le- based on involuntary scheme and the committment gitimate governmental protect- interest 545(b) justi- Title 21 are scheme under of § ing society rehabilitating pa- fiable reason of the situational differ- 301(d) penal by tients. Nor is rendered § acquittees and ences between committees. predicated the fact that it on the commis- analysis begins Supreme with the Our only sion a crime. Evidence of crime is Herold, Court of Baxstrom v. case 301(d) triggering one the elements 760, commitment, proof being the other element equal protection requires which held insanity by preponderance evi- of the prisoner that a to be transferred to a men- crime dence. Since the is relevant procedural hospital given tal be the same dangerousness, insofar as it indicates protections as those other afforded responsibility, presump- evil or criminal subject to involuntary civil commitment. continuing dangerousness, tion later, years Two States United Court of acquittee, rebuttable is both reasona- Appeals for the District of Columbia found ble and valid. equal protection holding, that Baxstrom’s as Because we have no evidence guarantees process well the due the record that the appellant’s conditions of Patterson, Specht v. 386 U.S. punitive confinement are partic or that his (1967),13require L.Ed.2d 326 ular commitment was based “persons guilty found not reason of in- considerations, ap we must conclude that sanity given judicial hearing be ... pellant’s grounded legiti detention is procedures substantially similar to those in nonpunitive mate interests of the District proceedings.” civil commitment Bolton v. of Columbia. Harris, supra (foot- 395 F.2d at 651 Appellant challenges his confine omitted). note Bolton was expressly ment under equal as violative premised on the weakness protection of process the laws. The due time defendant’s at the of the of- guarantee of the Fifth of the Amendment fense; decided, when Bolton was the stan- Constitution, United States which is direct acquittal dard for was whether there was a Columbia, ly applicable to the District of past regarding sanity. reasonable doubt encompasses equal protection. 395 F.2d at 649. The 1970 amend- Bolling Sharpe, significantly ments to have narrowed (1954); C.W.M., 98 L.Ed. 884 Matter of evidentiary gap requiring D.C.App., A.2d affirmatively prove exculpat- defendant specific objections ing insanity preponderance absence of jury by conditions of confinement or claims of inad- at the for his evidence trial equate discriminatory treatment,12 24-301(j).14 offense. D.C.Code may rationally sentencing pursuant Specht is as- striction] connected held that to Col- signable it, appears punish- and whether it exces- orado’s Sex Offenders Act was criminal purpose sive in process relation to alternative violated because it ment and due made assigned [to it].” S.Ct. at [id. for a sex the basis of conviction offense Mendoza-Martinez, (quoting Kennedy v. su- sentencing affording indeterminate without pra 168-69, citing at S.Ct. 83 at 567-68 and hearing issue of mental defendant Nestor, Flemming 603, v. 363 U.S. 80 illness, dangerousness or recidivism. 1367, 1373-76, (I960)) S.Ct. 4 L.Ed.2d 1435 (emphasis added).] 301(j)’s in the shift burden of Subsection upheld against constitutional attack 12.The to is treatment mental illness Bethea, Greene, recognized Cameron, supra, Tribby U.S.App. States v. and United v. 126 327, 21, U.S.App.D.C. (1973), F.2d 1145 D.C. 379 F.2d 104 v. 160 489 Rouse Cameron, denied, 977, 239, 366, 95 125 451 cert. 419 U.S. S.Ct. 42 (1974). L.Ed.2d 190 judicial permits (d) hearing required by Bolton was cod- to treat Subsection doctrine] 301(d)’s 50-day hearing persons acquitted by ified in release dif- § provision, notwithstanding changed ferently civilly persons na- from committed to ture of the defense. the extent there are relevant differ- Bolton, groups.” ences between those two equal protection suggested by test 10, supra at 395 F.2d at 651. But substan- procedures these cases is that the and stan- prohibited Bolton. tial differences dards of different schemes be commitment Thus, a distinction between reasonable any relevant to the classification and that statutory the two schemes would be one differences not be substantial. We there- government’s is relevant both agree fore with the statement in United legitimate separate in the interests classifi- Jackson, 386, v. States impermissibly cation and not substantial. 301(d) upheld “must be if § there is a rational basis for the scheme it cre- reviewing the Before differences ates.” The court arrived at this conclusion 24-301(d) 545(b), between it is § § 21— by determining that neither Jackson v. In- First, important to their similarities. note diana, U.S. of commitment is substantive standard (1972) (indeterminate pretrial L.Ed.2d 435 identical under both statutes. The twofold procedures found to violate proof requirement of mental illness and Baxstrom, equal protection), supra, nor dangerousness only held in the manner in varies scrutiny applies procedures Second, that strict to it is established.16 both 21-545(b) 24-301(d)(2) provide used for the criminal commitment of men- § tally persons.15 reviewing peti- mandatory judicial hearings, ill with notice Baxstrom, argument (court-appointed tioner’s Chief Jus- and assistance of counsel if “[e]qual protection necessary). tice Warren stated that These common characteristics require process rights does not that all be dealt constitute the essential due identically, require involuntary but it does that a associated with commitment. Jones, distinction made have some relevance to the Vitek v. See purpose (recognizing for which classification is made.” Baxstrom, supra, prisoner’s process rights hearing 86 S.Ct. at due recognized 762. Bolton also that “a reason- before transfer to a mental health facili application protection Specht Patterson, equal ty); supra.18 able Thus [of Krol, required 15. See also State v. 68 N.J. trict the minimum before Court as (1975) (questioning equal prisoner hospital: A.2d protection transfer of a to a mental applicable test to differences in com- prisoner “A. Written notice to the that a Baxstrom, required by mitment schemes hospital being transfer con- Novak, Indiana, supra) and Jackson v. Rea- sidered; ligning the Standards of Review Under the hearing, sufficiently AB. after the notice Prohibited, Equal Protection Neu- Guarantees — permit prisoner prepare, at which Classiñcations, tral and Permissive 62 Geo. prisoner disclosure to the is made of the (1974) (suggesting L.Rev. 1101-03 being evidence relied for the transfer Indiana, supra, Humphrey Jackson v. opportunity and at which an be heard in Cady, 405 U.S. 31 L.Ed.2d person present documentary and to evidence were based on a “demonstrable given; test). rational basis” hearing opportunity C. An testimony two-prong explicitly stated in of witnesses the de- 16. The test 21-545(b); however, 24-301(d) refers wit- fense and to confront and cross-examine acquittee’s state, except upon release. But it to an entitlement to nesses called made, finding, arbitrarily good is reasonable to assume that the same standard cause hearings by governs reference permitting presentation, such con- for not 24-301(e), cross-examination; §to which states that entitlement to frontation, or certification, release, upon hospital depends on decisionmaker; independent D. An showing longer men- that the is no E. A written statement the factfinder tally dangerous. ill and as to the evidence relied on and the reasons inmate; transferring follow- approvingly listed White 17. Justice Dis- Nebraska ing procedures outlined respect important appear with to constitutional There to be three differences be- 24-301(d) provide 21-545(b) protections the two statutes the tween and commit- (1) trial, availability jury (2) coverage. ments: the same the question who carries the burden of persuasively explained As in our first proof, proof required and the amount of panel opinion, the differences the between justify to these commitment.19 We review procedures two individually distinctions to ascertain wheth- justified by can be reference to situation- imper- er they permissibly are relevant or al groups differences between the two missibly substantial under Baxstrom and immediately prior respective hear- Bolton. ings. question, The civil commitment right jury While the trial availa any potential committee, is of first similarly ble to committees is not available impression, hearing” whereas the “release 50-day hearing, an release procedure acquittee presumably for an justified is by difference the fact that can be somewhat abbreviated because of right the a jury has had predictive the value of the initial deter- sanity determination of his the at time of dangerousness insanity minations of and acquittee’s offense.20 Thus the mental (That predictive at the criminal trial. initially by illness is established affirmative value prior rests on defendant’s own proof.' Dangerousness validly is no less es by preponderance of his by proof that the tablished defendant com by jury trial if he evidence— act, mitted the criminal necessari requested it.) 24-545(b) Whereas the ly any acquittal by underlying reason therefore, hearing, represents a de novo Bethea, 93-95; insanity. supra at See process, 24-301(d) hearing is an States, D.C.App., Smothers v. United updating process how to determine A.2d United States v. present compares ear- status with Ecker, at 543 F.2d at findings urged lier had been court stated that 1958this court has “[s]ince case, defendant himself.... In either consistently accepted proposition concern is a determination as to the dangerousness demonstrated sanity dangerousness, with a view to acquittal commission of a crime and rehabilitation. Given these situational constitutes a rational ba po- differences between provisions sis disparity immediately tential prior committees to governing acquittees and committees.” determination, the initial commitment (Footnote omitted). recognized Ecker also in hearing procedures difference disparities pro that some in commitment justified; arguably there no constitu- ceedings permissible, id. similarly at prohibition against tional 196-97, rational differ- explained 543 F.2d at ences in the treatment of differently (d) patients situ- are treated “[s]ubsection persons. States, ated differently v. United from civil committees [Jones because they exceptional 396 A.2d people’ are ‘an class of who 189.] examine, counsel, Availability legal offer evidence his own. furnished F. financially state, findings adequate un- And there be if the inmate is must to make own; meaningful any appeal his able furnish [Id. that is allowed. timely notice of all Effective and G. at 1212.] S.Ct. Jones, supra foregoing rights.” [Vitek compare post- 19. We do not the differences in 494-95, at 1264.] procedures they since are not cov- appellant’s ered in these subsections and claim Specht opinion 18.The held alleged invalidity based of his confine- process requires 301(d). Due defend- ment under subsection [the ... counsel, oppor- have ant] jury right Appellant’s waiver of heard, tunity wit- to be be confronted with argument. affect our him, trial does not against to cross- nesses have the ‘already unhappily ceeding have “represent only manifested the re- beginning the of ” ality of anti-social conduct.’ Id. at inquiry.” the The Court continued: (footnotes omitted). F.2d at 197 the mentally “Whether individual is ill and dangerous to either himself or others and is appellant’s The fact illness therapy need confined turns on the dangerousness determined, jury and are not meaning of the facts which must be inter- prior jury finding, but derived from a is not preted by expert psychiatrists psycholo- significant since the continuation of these gists.” (emphasis Thus, original). permissible attributes is a rational evi- juror judge and rely both forced to on dentiary presumption.21 In Waite v. Ja- expert proceed- evidence cobs, 281, 288-89, U.S.App.D.C. ings, significantly diminishing impor- validity F.2d 399-400 of this personal judgment, tance their values presumption recognized: was sum, experience. (1) In because an justification The placing rational acquittee right jury has a determina- proof the burden of on a committee is trial; past insanity tion of criminal dangerousness that his mental illness and (2) presume it is reasonable to the continua- previously convincingly have estab- illness; jury right tion of a mental facts, light lished. In of those established proceedings in commitment is not as mean- gives presumption the law effect to a ingful cases, ordinary as it is in criminal continuity comports of status. It 24-301(d) jury right absence of a at a § perceptions reality normal hence —and hearing is not a substantial differ- that, given is rational —to assume once a 21-545(b) ence vis-a-vis civil commitment. exist, proven status is it continues to showing do so the absence of evidence The second distinction between the contrary likely to be more than not. procedures two commitment in the District Waite, however, presumption In government of Columbia is the fact that the applicable not because unlike in the instant 21-545(b) bears the burden of in a § case, had never been afforded hearing, 50-day whereas in the release hear post-acquittal judicial hearing ing, prove must that he is no question of his mental illness continued longer mentally dangerous. ill or It is en dangerousness. tirely require rational District to an prove his entitlement to release availability jury of a The trial where he was the one to advocate the fact 545(b) and the absence of such a § 21— past insanity. of his Automatic § 24-301(d) hearing at a is also an acquittal by commitment does not follow insubstantial difference because the find insanity question when ings dangerousness of mental illness and prose is raised the court or the expert testimony are based and are cutor, rather than the defendant. United uniquely province matters within the Wright, U.S.App.D.C. v. States Addington Texas, jury lay persons. (1975). above, F.2d 1311 As mentioned 1804, 1811, presumption contin that a mental condition explained L.Ed.2d 323 the Court ues is a reasonable one and it is also reason delinquency proceedings in contrast require person who prosecutions where “the able to raised basic issue presumption straightforward question is a factual to refute it affirmative —did Furthermore, alleged,” proof. whatever difference accused commit the act questions pro- might in civil commitment in risk there be between factual allocation Jury days. jury noteworthy hearing It is that the within 50 is also in- also Criminal Columbia, hearing No. structed that at the defendant Instruction the District of court, (3d 1978), given prove by preponderance 5.11 ed. to be when defense must evidence, pleaded, jury entitled to release. of consequence informs the that the that he is approved acquittal in United of an reason of insan- This instruction was States 1, 29-30, Brawner, ity of the de- will be automatic commitment Elizabeths, fendant to St. followed a release 997-98 the two a of who court recognized prepon- statutes as result bears circuit also that a proof by the burden of is minimized the enough provide equal derance standard is to fact that when bears the the bur- protection acquittees. to den, prove by need to he entitlement release Appellant argued has a of that series evidence, preponderance only a the Supreme later Court and circuit deci- court proof, lowest standard of whereas when the equal protection theory based sions on an government burden, prove the it bears must support his entitlement to release the as of by a insanity dangerousness higher expiration hypothetical of his maximum standard, of namely that clear and convinc- prison However, term. the cases cited Nelson, ing D.C.App., re evidence. In appellant distinguishable. are all A.2d 1233 In v. Humphrey Cady, disparity Yet this the of in level a defend- proof by danger which mental illness contributing ant convicted of to the delin- pro ousness established under the two quency of a was “sex minor committed to a cedures, regarded when not as a counter facility” prison deviate in a Wisconsin state of non-persuasion, balance risk is authorizing of lieu sentence. The statute 24-301(d) another difference between provided such commitment an initial term 21-545(b) justified which must be ra equal to the maximum sentence the defend- tionally related to situational differ received, five-year ant could have re- ences between and committees. judge-made a newals based on of acquittee’s An past insanity proven by is a dangerousness. statutory The scheme preponderance present of the evidence. His Humphrey clearly express puni- included an insanity determined his failure to re tive element evidenced the limitation of but, evidence, preponderance of period the initial commitment term presumption continuing insanity. In of corresponding that applicable to those contrast, a committee’s detention is based convicted.23 convincing on clear and evidence mental Nelson, dangerousness. illness and In re In same that term it decided Hum- supra.22 The difference between these two phrey, Supreme Court held indefi- justified by standards is the fact that Con person charged nite confinement with gress raising determined that a defendant incompetent crime and found to stand have defense should not to meet protection equal trial violated because the higher relatively burden on such a diffi charges were prove insufficient to However, cult issue. when District dangerous either that the or defendant was person seeks disputing to commit a iswho required that he treatment. Jackson v. In- dangerousness, fact it is diana, supra. inapposite Jackson reasonable that the risk of error be more instant case because Jackson was never heavily government. thrust See tried was for the crime with he Texas, Addington supra. v. Ecker, supra charged. See United States Bolton, supra n.50, (distinguishing at at 196-98 F.2d n.50, Brown, equal protection and in United reason in States 155 Jackson same challenge 24-301(e)). 478 F.2d 606 his Since contin- challenged 22. has not Since his initial conclusion that the difference in the level commitment, argument proof required we view his as based is both rational and not so sub- equal equal protection. protection. on a denial of We stantial as to violate note, however, May appel- when 50-day hearing, lant disagree received interpretation Hum We beyond prevailing proof Jacobs, supra standard a reason- phrey 47 in Waite v. doubt, Hodges, D.C.App., able In re 325 A.2d be F.2d at there is little difference Nelson, ). (1974) (overruled In re position tween the of an and that greater disparity in subject between the two convicted defendant to the Wisconsin ap- statute, standards that existed when since we have determined that there pellant was first committed would not alter our no element commitments. any ued detention was not years, based on other exceed should, five course, evidentiary predicate dangerousness, it never exceed the maximum sentence for therefore became invalid after “the reason- offense, less mandatory release time.” necessary able of time to determine Id. at 478 F.2d at 612. As previously whether there is a substantial probability explained, factors relevant to re- person will attain ca- [the held] [the] lease from a mental institution are the ac- pacity stand in the foreseeable [to trial] quittee’s dangerousness continued and his future.” Id. 406 S.Ct. at need for treatment. Judicial limitations on 1858. the duration of confinement hypo- based on prison thetical terms or other arbitrary de-

Appellant’s reliance on the District of terminations of a maximum term hospi- Jacobs, Columbia cases Circuit of Waite v. talization, suggested Brown, as in have no Brown, and United States v. supra, is purpose relation to the of the statute. In unavailing.24 also acquitted Waite was be- event, any need such limitations has fore the Bolton decision and therefore auto- obviated the enactment of the 1970 matically finding committed after a of not amendments to 24-301. § guilty by judi- without a hearing cial on his continued mental illness reasons, For foregoing the trial dangerousness, subsequently court’s denying appellant’s order right required by Bolton and codified in 24- § or, alternative, immediate release in the 301(d)(2). Waite’s commitment was there- civil pursuant commitment to D.C.Code fore beginning invalid from the argu- 1973, 21-545(b) is § justifiable ably penal detention. As Affirmed. such, it applicable was limited to the maxi- period. mum sentence FERREN, Judge, Associate with whom “post-Bolton, pre- Brown was a NEWMAN, MACK, Judge, Chief Asso- 1970 amendments” who chal Judge, join, dissenting: ciate lenged proof the burden of post-ac at his I continue to subscribe to our division quittal judicial hearing. Ap The Court of opinion rehearing, 411 A.2d 624 peals upheld in Brown preponderance vacating (1978). 396 A.2d 183 applied, standard justifying the difference in the level of vis-a-vis the level of I. proof required 21-545(b) in proceedings § process, Under the civil commitment D.C. “meaningful responsibil elements of -545, govern- Code 21-541 to §§ ity” acquittee may which an have. Insofar proving person ment has the burden of reasoning as this suggests punitive ele mentally dangerous ill and to self or oth- 301(d) reject ment to we § it as inconsistent proving jury poten- ers —and it to a if the finding with our the commitment tial committee so demands. Id. 21-544. § acquittees scheme for is not intended to contrast, In under the “insane criminal” any guilt imply any attribute social in process, D.C.Code 24- §§ debtedness in the excuse of a of -303, acquitted 301 to a defendant by rea- Therefore, fense. we need not follow the proving son of has the burden of he in dicta Brown that extent of “[t]he [the longer mentally danger- or she no ill or [justified post- commitment] right ous—without jury. Bolton, pre-1970 amendments commitment] 24-301(d)(2). § discretion, calls for sound would take into account, g., (vio e. the nature of the crime colleagues majority Our in the conclude not), given lent or nature of treatment these differences in treatment of two response person, generally would not" classes of institutionalized —com- formally binding 24. These cases are not on this Columbia Reform Court and Criminal Proce- they February Ryan, D.C.App., court because were decided after dure Act of 1970. M.A.P. v. 1, 1971, (1971). the effective date of the District of 285 A.2d 310 pital, subject government’s right mittees not violate the to the —do acquittee’s equal pro- constitutional seek civil commitment.” 411 A.2d response tection of the laws. I propose greater therefore in discuss allegation procedural shortcuts in detail the determinative issue: whether punitive purpose, 24-301 reflect a in con- 24-301(d) is, extent, punitive. some purpose a wholly therapeutic trast with un- derlying process, the civil commitment II. majority concludes “that there is no basis Supreme Court has identified several any re- determining factors use whether spect.” Ante at 368.1 punitive. A first statute court should I majority do not understand the to disa- “objective look for manifestations con- gree if proposition 24- Kennedy v. Mendoza- gressional purpose.” 301(d) imposes punishment any respect, Martinez, 144, 169, U.S. S.Ct. analysis opinion our division is consti- (1963). Accord, Bell tutionally that, Wolfish, sound.2 It would follow possible prison

“because the maximum term L.Ed.2d Where it is not appellant for which Michael Jones could clear on the of the face statute whether expired, have intent, been incarcerated has he is Congress punitive court had a a entitled release from variety St. Elizabeths Hos- must consider other a of factors: majority protec- equal protection 1. The maintains that lesser a as matter vis-a-vis civil of proof committees, tions in 24-301—burden acquittees (or of on the ac- be released quittee, jury right to without trial —do not alter civilly committed) no later than the end of -545, equivalence its to §§ 21-544 and prison they the maximum have term would acquittee already right jury has had a trial criminally agree. received if convicted. We manifesting insanity, on the conduct and the Herold, According to Baxstrom U.S. [v. 383 proof justified by shift in burden of evidentiary presumption is a valid 107, 111, 760, 762, 15 620 L.Ed.2d acquittee’s that the in- (1966)], “[e]qual protection require does not sanity at the time he offense —which identically, that all be dealt with but himself asserted —continues time of the require it does that a distinction have made hearing. therefore, hearing, release That un- purpose some relevance to the for which the proceeding, proce- like a civil commitment dure to is a (citation omitted). classification is made” initiate, update, inquiry. Accord, Harris, U.S.App.D.C. 130 [v. Bolton opinion rehearing In our division on we re- 1, 10, (1968)]. 395 651 basis On the jected analysis. pre- We noted that punitive partially of the rationale for the sumption continuing insanity questiona- is criminal er, set earli commitment scheme forth ble, spanning years as does it months or even supra, see text and cases at note 9 between time of the offense and the time might criminal commitment scheme survive Furthermore, hearing. the release we saw that Baxstrom, equal protection scrutiny under analyzing the courts civil commit- supra, though procedure even for confin jurisdictions “typically ment schemes in other greater ing provides protec civil committees evidentiary justi- mix fying rationales in (the right outset tion the individual at the comprehensive less review jury proof govern ato and burden of hearings’ at ‘release than is civil afforded com- however, ment). agree appellant, We proceedings.” at mittees such 411 A.2d confining (footnote that there no basis omitted). 628-29 as Differences such 24-301(d) beyond length a shift in the burden and withdrawal of term, commonly hypothetical prison jury justified, maximum since the part, “by society’s public’s greater protec- that term marks the end of claim on interest in likely punishment. any tion than it would be jecting acquittees to receive sub- kind of individual Any longer depend, to the civil commitment must consti confinement therefore, process.” concluded, Id. at We tutionally, 630. de commitment. on a novo civil that “the between criminal and difference[s] Humphrey Cady, 510- [v. See justi- procedures civil commitment cannot be 1048, 1052-53, 31 L.Ed.2d purely evidentiary grounds.” fied on [, (1972)]; 110- 383 U.S. at Baxstrom Brown, 762]; States v. 86 S.Ct. at [United opinion rehearing, division we our sum- U.S.App.D.C. 478 F.2d analysis: our marized (1973)]. Assuming the best case for the constitution- (footnote omitted). 411 A.2d at 630 ality 24-301(d), argues §of that its dictates, partially punitive character least Whether the sanction involves an affirm- ment were such that “insane criminal” com restraint, disability 24-301, ative whether it mitment under D.C.Code historically regarded has pun- having partially punitive purpose, as a must be ishment, play only whether it comes into hypothetical limited to the maximum sen scienter, oper- aon whether its (less time), mandatory tence after promote ation will the traditional aims of which the would be entitled either deterrence, punishment proceed to release or to a civil commitment —retribution applies whether the behavior to which it Accord, Jacobs, ing. U.S.App. Waite v. crime, already whether an alternative 284-85, 475 F.2d D.C. 395-96 purpose may rationally to which it it, assignable connected and wheth- Brown, Apropos majority the en banc appears er it excessive in relation to the present prior concedes in the case that purpose assigned alternative are all rele- aspects,” “punitive quality statute had may point vant to inquiry, often necessary that Bolton “undo.” Ante differing [Kennedy, supra directions. at 369. yet And in the same paragraph 168-69, U.S. at 567-68 majority states that 1970 amend- “[t]he (footnotes omitted).] 301(d), response ments to enacted in to” Accord, Bell, supra, 441 U.S. at 99 Bolton, original pur- “have its not altered case, S.Ct. at 1873. In the we con- pose,” ante ma- which the Congress clearly front statute for jority nonsequitur —in —characterizes punitive purpose. had a nonpunitive Hough v. by reference to Unit- States, ed A. The Previous and Judicial Con- Statute pre-Bolton and other circuit struction therefore, majority, court decisions. The Analysis begins previous with the statute. If, inherently majority as the inconsistent. See, 170, Kennedy, supra at 83 S.Ct. at 568. concedes, pre-Bolton puni- statute was 1967, 24-301(d), Under D.C.Code a de- § tive, point necessary Bolton was successfully interposed fendant who the in- impact, to correct I do its unconstitutional sanity defense was automatical- committed statutory amendments “in re- see how ly indefinitely a mental institu- —and —to Bolton,” sponse providing protec- lesser However, Harris, tion. in Bolton v. 130 tions, automatically can be said to remove 1, (1968), U.S.App.D.C. 395 F.2d 642 original, “punitive aspects” of that stat- Appeals United States Court of question do the 1970 ute. The remains: District of held that Columbia Circuit auto- modifying amendments Bolton erase matic commitment of was uncon- punitive purpose previous statute? equal protection stitutional —a denial of vis- accordingly a-vis committees. The court The Its Construc- B. Present Statute and that, required guilty of not tion insanity, acquittee an was con- that, Legislative history 1. confirms stitutionally equivalent entitled to the 1970, Congress amending 24-301(d) in proceeding, § civil commitment which came punish original held on to its intent hearing.”3 to be known as the “Bolton offender, later, Brown, if not conviction and criminal years Five in United States v. 402, 408, 606, imprisonment then indefinite confine- U.S.App.D.C. 155 478 F.2d 612 (1973), even ment in a mental institution. The overrid- the court held that after a hearing disparities ing Representa- House of “Bolton” of treat- concern of the 308, result, Overholser, reaching U.S.App.D.C. dale v. 108 281 3. In the court relied Leach, Herold, 107, 760, (1960); v. 103 Baxstrom v. 383 U.S. 86 S.Ct. F.2d 943 Overholser Patterson, 289, (1958), Specht U.S.App.D.C. cert. 15 L.Ed.2d v. 257 F.2d 667 620 1209, 1013, 1152, 605, 386 U.S. 87 18 L.Ed.2d 326 denied 359 U.S. 3 L.Ed.2d 12, Bolton, (1967). expressly (1959). modified its 395 F.2d at The circuit court 1038 O’Beirne, earlier decisions in v. 112 Overholser 653. 267, U.S.App.D.C. (1961); Rags- 302 F.2d 852 “permits dangerous Freeman, 606, tives was that Bolton (2d 357 F.2d 626 n.60 Cir. ways’ criminals ... ‘to have 1966), it both Congress intended the substantial —to escape both conviction and commitment pro- likelihood indefinite confinement to Comm, hospital.” House on The District vide an effective tempted deterrent to those Columbia, District Court of Columbia misuse the defense to avoid Reform and Criminal Procedure Act of short, legis- criminal incarceration. 1970, Criminals, 74, Section 207—Insane history lative of the 1970 pro- amendments H.R.Rep.No. 91-907, Cong., 91st 2d Sess. strong Congress, vides evidence that (emphasis added) (quoting Overholser v. Bolton, overruling intended as restore O’Beirne, 267, 276, U.S.App.D.C. punishment 24-301(d), much under 852, (1961)). F.2d The House con constitutionally pass would muster. possibility sidered criminal of legislative history, More than the get fender could off without being either legislative result —the statute itself —re- hospitalized convicted or “intolerable.” Congress punish- veals that maintained its Jackson, See U.S.App. United States objective. ment 375, 381-82, D.C. 553 F.2d 115-16 First, procedures by the authorized may challenge confinement congressional drafting intention in institution, a mental 24— D.C.Code §§ 24-301(d), therefore, was “to 301(d)(2), -(k)(l) through (6), nothing do objections meet of the Bolton court corpus more than institutionalize the habeas preserving principle while of the man procedure already was available datory escape those who Cameron, time of Bolton. See Miller v. responsibility ground abnormality.” Bethea v. United (1964); O’Beirne, supra at, States, F.2d D.C.App., 365 A.2d 92 n.62 860; denied, Ragsdale Overholser, U.S.App. cert. D.C. (emphasis 948-49 add ed). (1960); Congress 24-301(g). wanted D.C.Code Proce to confront the crim therefore, durally, inal defendant with a is no choice: conviction or better very “the off possibility today real 24—301 he she prolonged ther than apeutic (footnote confinement.” Id. at 90 under the same statute before 1970. omitted). prospect acquittee prove Because “the Unless can of com the he or she is to mentally mitment a mental dangerous, institution for an in not ill or confinement definite is much less desirable than a 24-301 is both automatic and indefi fixed term prison,” in United States v. nite.4 My colleagues’ implication altering psychiatric testimony, impact of it is for proof acquittees denying burden of jury, psychiatric a expert, not to decide jury procedural to trial are minor distinctions accused’s mental state. Id at 82-83. The ma commitment, 372-375, from civil ante see jority’s emphasis on on factfinder’s reliance Congress’ purpose is inconsistent with in expert testimony accessing in the accused’s amending the statute to overrule Bolton. As (and mental on a state thus the lesser need for Bethea, recognized supra, impos- this court in jury) rejected by recently the United ing proof acquittee the burden of is a Appeals States Court of for the District of Co significant procedural distinction civil from Ecker, lumbia in United States Circuit commitment; designed it is to it make more 31, (1976), de F.2d 178 cert. acquittee gain difficult for the freedom. Id nied, 788, 1063, 429 U.S. 50 L.Ed.2d Indeed, at 91-92. where is often difficult (1977). There, upheld the trial court assess, Texas, 418, Addington to 429, see 441 U.S. acquittee court’s an from a refusal (1979), L.Ed.2d hospital despite mental the recommendations proof may “the allocation burden doctors, stating, of his “the court must district 284, outcome determinative.” Waite independently ‘weigh the and make a evidence’ 475 F.2d at 395. patient de will not novo determination that the majority’s discounting of the role endanger the reasonable future himself jury questions capacity when are of mental (emphasis others.” at 187 ruling issue is also in direct conflict with our original). Bethea, supra, that, emphasized despite

Second, confinement, Third, acquittees perhaps telling, most is anoth- necessarily example not er differing possibilities treated the same as commit- for re- jurisdiction, lease of tees. In this an individual and committees after superintendent confinement. When the guilty by found not reason of if “as Hospital Saint Elizabeths certifies that a a result aof mental disease or defect he cured, committee is the individual is dis- capacity recog- lacked substantial either to charged hospital. from the D.C.Code wrongfulness nize the of his conduct or to contrast, 21-590. In hospital when the requirements conform his conduct to the superintendent acquittee certifies that an Bethea, supra (emphasis law.” at 79 add- recovered, government has may demand ed). Ordinarily, jurisdiction this treats indi- hearing. a hearing, At this if the court is suffering (i. viduals from a mental “defect” convinced that the has recov- e., retardation) differently mental from the ered, may the court order his or her return way suffering it treats individuals from a hospital though even the authorities illness. Under civil commitment there enough consider the individual well procedures, mentally defective individual 24-301(e). for release. D.C.Code who is nor “not insane of unsound mind to Ecker, In United U.S.App. States v. require such an extent his commitment denied, D.C. 543 F.2d 178 cert. hospital mentally for the ill” is commit- Haven, facility ted to Forest for retarded acquittee challenged an the constitu persons. D.C.Code 32- §§ validity tional of this added hurdle —court contrast, acquittee, 601. In even if approval years release. Five after —before suffering defect, from a mental is commit- jury guilty had found the defendant not hospital ill, ted mentally Saint rape insanity, and murder reason of Id., 24-301(d). Elizabeths. superintendent of Saint Elizabeths rec Jackson, In United States v. ommended conditional release. After a upheld court this distinction in treatment hearing, despite the recommendation of the precisely recognized because it that Con- examining psychiatrists, the trial court de gress acquit- “intended that all defendants hospital’s request nied the and ordered con ted should be distin- hospital tinued upholding confinement. In guished persons, including from all other decision, the statute and the trial court’s persons civilly committed for mental dis- expressly the federal circuit court relied on eases or retardation.” Id. at 553 F.2d the fact that Ecker had committed a violent Jackson, (emphasis original). at 115 criminal act.5 Id. at 543 F.2d at 199. justified court difference in treat- hospital Whether psychiatrists or not the acquittees, ment on the basis that but for released, thought Ecker should be the trial insanity plea, guilty their had been found public court had duty protect “the against society. crimes Id. at against already whom the has Jackson, Apropos at 121. of this difference been shown to have committed one or more acquittees in treatment of certain cannot acts, differentiating criminal thus himself justified possibly merely be on the basis of 51, from the civil committee.” Id. at 543 evidentiary presumption concerning an the importantly,” F.2d at 198. “More the court continuing acquit- mental condition of the rejected equal protection argument Ecker’s Rather, supra. Indiana, tee. 715, See note 1 it is an based on Jackson v. express statutory provision, justified by 1845, ref- 92 L.Ed.2d Bax S.Ct. Herold, 107, 760, criminality acquittee’s erence to the the of strom v. U.S. S.Ct. prior Humphrey conduct. and court, once, acquitted by 5. The circuit more than has relied had been reason of of justi- underlying degree burglary rape, on the nature of the fy offense to first contrast with consequences the of confinement under mere theft of sums which would “not small Jackson, 387, 24-301(d). dangerousness.” In United States v. su- indicate excessive Id. at pra, emphasized the court that the defendant 553 F.2d at 121. 1048, Cady, precisely acquit- 31 harsher treatment U.S. because (1972), reasoning L.Ed.2d 394 the “that tees have committed crimes. may justify differ-

criminal conviction some C. Statutory The Relevance the Maxi- procedural safeguards ences in if the differ- mum Sentence ences are nature the ‘limited or defendant’s crime the maximum sen- majority rejects statutory The use ” tence crime’ Id. authorized at maximum to determine sentences the maxi- 51-52, (quoting Hum- at 198-99 length mum of confinement under 24—301 1053) phrey, supra (em- at at because “no such máximums have relation- phasis added). Because Ecker could have ship purposes of mental care and incarcerated, however, been for a life sen- agree. treatment.” Ante at 369. I acquitted by tence not insanity, if reason of majority notion states “[t]he procedures (be- the differences in release acquittee’s hospitalization duration of an acquittees committees) tween were or can established statute court order justifiable. Finally, therefore the court re- ignores precepts the most basic of medicine jected hospital by say- recommendation and psychiatry . . . .” Ante at 370. ing that even if the hospital were correct Again, agree. the acquittee I If were hos- step-by-step reentry “that a into com- reasons, pitalized solely for I medical would munity essential to Ecker’s continued [was] be the statutory first concur that a maxi- improvement,” “who com- has mum for confinement based nature violent mitted criminal has acts” “no acquittee’s criminal conduct would community’s to treatment at peril.” application. have no relevance or But 52-53, at 543 F.2d 199-200. problem clearly so is—and is evident legislative history, Given the acquittees the differ- Ecker —that are not confined ences in treatment of com- mental institutions medical reasons mittees, judicial gloss and the They on the stat- part alone. are confined there Ecker, ute by majori- decisions as society unwilling such because to allow those ty’s position purpose that the escape the statute who have committed crimes to with- solely men- paying out for their crimes. The intent of ] “treat[ rehabilitate] patients happen tal partially who to have ac- punitive, been the statute is and thus quitted insanity,” procedures crimes this 24-301 reflect added burden on the Because ante defendant. unsupportable. Acquittees at just patients happen” punitive purpose, “who of this the maximum stat- acquitted utory have been crimes reason of confinement becomes rele- insanity. vant, The fact of point society longer their criminal con- no has at play duct continues to a decisive role valid interest in continued confinement Brown, procedure. nature of their treatment and their chances the basis of a shortcut 612; Waite, supra for release after initial commitment. Con- 478 F.2d at see gress 396; justified supra.6 courts have 475 F.2d at note 2 Although foregoing sequence historically suffi- act discussion is “has congressional purpose regarded punishment,” Kennedy, cient to demonstrate the su- underlying pra I note D.C.Code for which U.S. at S.Ct. at Kennedy briefly continually that the Supreme other factors confirm write Court has had to See, g., intent. guidelines. constitutional e. Jackson definition, Indiana, By Humphrey, Specht, supra; supra; su- confinement a mental insti- restraint,” disability pra; Baxstrom, supra. tution is “an affirmative play id. more into even Criminal confinement also comes Jones, scienter,” “only Kennedy, supra perhaps imprisonment, than see Vitek v. on a Bethea, 480, 493-94, 1254, 1263-64, 567; at see at 94 U.S. 100 S.Ct. 83 S.Ct. at already (1980), given applies the indefinite du- and “the behavior to which it crime,” stigma. Addington, supra, Kennedy, supra at ration and the See a 567, at S.Ct. 425-26, Despite at U.S. 99 S.Ct. 1809. virtue of the criminal conviction treatment, moreover, precedes “promote[s] its for use confinement it. The statute also punishment dangerousness for mental illness and a con- aims of as traditional —retribution

III. of the laws.7 Michael Jones should be re- leased unless civilly committed. Society’s right punish Michael Jones offense, for his first a misdemeanor —steal-

ing long expired. a coat —has since As ev- protection equal

ery day passes he is denied indicated, id., for, indefinitely stealing deterrence,” already ing Michael Jones and Congress coat, punishable by noted a this court have desire a misdemeanor maximum prevent year. the misuse defense confinement for one consequences making more severe than de addition, procedural novo commitment. In civil a court different When confronts serves oth- safeguards confinement w.mental institution to different classes of indi- afforded goals incapacitation punishment, institutions, er and re- committed mental con- viduals Brown, See United States v. habilitation. protection equal process be- cerns of and due 14 L.Ed.2d Indiana, su- come interrelated. See Jackson (1965) (“Punishment pur- serves several 1854; pra cf. Hum- 406 U.S. at retributive, rehabilitative, pose: deterrent —and supra, phrey, at 1053 U.S. at S.Ct. generally, Vorenberg, preventive”). J. See (1972) (noting con- favor the state court’s 44-57 Criminal Law & Procedure Equal as rele- Protection Clause sideration discussed, Finally, already I do for reasons process analysis); procedural vant due nonpunitive, wholly “al- not believe there is Specht, supra at 1211 386 U.S. at supra, purpose,” Kennedy, ternative (commitment proceedings for sex offenders 567-68, assignable to 83 S.Ct. at subject Equal Proc- both to Protection and Due 24-301; purposes assigned if but even the equal Clauses). evaluating protection ess majority the protection —treatment acquittee, ques- I have not reached society altogether nonpun- —were concern, independent process tion of due although as an itive, of Michael the indefinite confinement question here. I there is serious beyond any stealing a well Jones for public protection coat is note, moreover, any effort to reduce gloss pur- on the statute’s procedural safeguards to civil commit- afforded pose. thing keep It is one tees, equal resolving protection possibly life, Ecker, while rape see murder and confined questions problems, due theory would raise serious appellant’s as he would process here, for that class of individuals. But those are life-sentence crimes. society “protection” has no interest confin-

Case Details

Case Name: Jones v. United States

Court Name: District of Columbia Court of Appeals

Date Published: May 29, 1981

Citation: 432 A.2d 364

Docket Number: 11918

Court Abbreviation: D.C.