478 F.2d 606 | D.C. Cir. | 1973
Lead Opinion
Appellant was indicted on 8 counts of robbery, 11 of assault with a deadly weapon, and one count each of rape and carrying a pistol without a license. At a trial in 1969, without a jury, by Judge William B. Jones, he was acquitted by reason of insanity. Following that acquittal, appellant was given a hearing, pursuant to 24 D.C.Code § 301(d), as construed in Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642 (1968), to determine whether he was mentally ill and ought to be retained in custody in a mental hospital.
That preponderance standard was the one set forth in the Bolton opinion as applicable to this post-acquittal commitment proceeding.
As to the standard of proof in an involuntary civil commitment proceeding, the pertinent statute provides that the court may order hospitalization or other treatment “if the court or jury finds that 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 § 21-545. That provision, and its predecessor, have been construed to require a showing by the party seeking civil commitment “by a preponderance of the evidence.” Lynch v. Overholser, 369 U.S. 705, 711, 714, 82 S.Ct. 1063, 1069, 8 L.Ed.2d 211 (1962); In re Alexander, 125 U.S.App.D.C. 352, 372 F.2d 925 (1967); Bolton v. Harris, 130 U.S.App.D.C. 1, 10, 395 F.2d 642, 652 (1966).
The claim that a reasonable-doubt standard is constitutionally requisite is based on In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Winship involved a juvenile delinquency proceeding brought under a New York statute defining delinquency as acts which, if done by an adult, would constitute a crime.
Notwithstanding that juvenile court proceedings are styled “civil” by New York, as by most other states, the Court held that the elements of due process would not be substantially different from those pertaining to the criminal process, because in either case, the risks connected with being wrong would be much the same; a substantial and involuntary deprivation of liberty combined with the odium of a stigma upon one’s good name.
In Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966), the Court held that banishment by a deportation order could not permissibly be accomplished with the same “preponderance” standard as is applicable to negligence cases, but the Court did not require the same standard of proof as a criminal proceeding and instead fashioned the intermediate standard of “clear, unequivocal, and convincing evidence.” 385 U.S. at 285, 87 S.Ct. 483. As the Court noted, this standard has been applied in civil cases involving allegations of particular significance.
We entered an order suspending consideration of this case pending determination by the Supreme Court of cases that would, we thought, have resolved the constitutional requirement for civil commitment. The Supreme Court’s ultimate disposition left that issue unresolved. Murel v. Baltimore City Criminal Court, 407 U.S. 355, 92 S.Ct. 2091, 32 L.Ed.2d 791 (1972). Reverting to
The criminal defendant who chooses to claim that he was mentally irresponsible when his offense was committed' is in quite a different position. It is true that he may avoid the ordinary criminal penalty merely by submitting enough evidence of an abnormal mental condition to raise a reasonable doubt of his responsibility at the time of committing the offense. Congress might have thought, however, that having successfully claimed insanity to avoid punishment, the accused should then bear the burden of proving that he is no longer subject to the same mental abnormality which produced his criminal acts. Alternatively, Congress might have considered it appropriate to provide compulsory commitment for those who successively invoke an insanity defense in order to discourage false pleas of insanity. We need go no further here than to say that such differentiating considerations are pertinent to ascertaining the intended reach of this statutory provision.
Persons acquitted by reason of insanity have been determined to have been guilty, beyond a reasonable doubt of acts that impaired the safety of the community.
Bolton also held that the difference between the two groups did not warrant continued holding of the insanity-acquitted without a judicial hearing. The soundness of this is undisputed, and indeed, as was noted in United States v. Brawner, 471 F.2d at 996, 997 was incorporated by Congress into the 1970 legislation (cited in note 3). Bolton further held that the procedures culminating in the judicial determination, after hearing, on continued detention vel non should be substantially similar to those in proceedings, under 21 D.C.Code § 545(b), for civil commitment of the dangerous mentally ill. No question arises as to this ruling, and the insanity-acquitted person has substantially all the procedural protection of 21 D.C.Code § 545, including provisions for examina
What appellant seeks is a decision that changes the Bolton ruling that on the issue of detention the burden is on the Government to prove present mental illness by a preponderance of the evidence. Appellant seeks that change on the ground that the Bolton opinion erroneously assumed that this was the standard for civil commitment. If there was such an erroneous assumption it was offset by another erroneous assumption that the standard on burden of proof must be the same for both groups.
There is justification for the preponderance of proof standard for confinement of the insanity-acquitted even assuming a higher standard is required prior to civil commitment for propensity. We think this justification exists even though, at the same time, we would find no justification for denying the insanity-acquitted the right to jury trial that is recognized for those involved in civil commitment proceedings.
The difference between the classes 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 harm to society. If there is a similar error in confinement of an insanity-acquitted individual, there is not only the fact of harm already done, but the substantial prospect that the same error, ascribing the quality of mental disease to a less extreme deviance, resulted in a legal exculpation where there should have been legal responsibility for the antisocial 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.”
Baxstrom v. Herold,
“For purposes of granting judicial review before a jury of the question whether a person is mentally ill and in need of institutionalization, there is no conceivable basis for distinguishing the commitment of a person who is*612 nearing the end of a penal term from all other civil commitments.”
Insofar as Baxstrom pertains to procedures, its spirit may be applicable to all persons in prison.
The clear implications of the foregoing analysis, and Baxstrom, require, however, that when the individual 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 sentence for the offense, less mandatory release time.
In the case before us that period of time has not been reached and the committal judgment of the District Court reflecting a determination based on preponderance of the evidence is sustained. We reiterate the holding of Bolton v. Harris on the preponderance standard, although we acknowledge some difference in underlying reasoning. Affirmed.
. Two issues are ordinarily presented: first, whether the subject is mentally ill; second, whether because of that mental illness, he will be likely to injure himself or others. 21 D.C.Code § 541(a). The “likely hazard” issue has been removed from this case by counsel’s stipulation that Mr. Brown is dangerous if the jury shall find that Brown is mentally ill.
. See Tr. 250-251:
It is provided by law that if you should find that the Government has established by a preponderance of the evidence the essential element, that the respondent is mentally ill, then in this case the Court may order the respondent’s hospitalization for an indeterminate period of time, or order such*608 other alternative course of treatment as it believes will be in the best interests of the respondent or of the public.
If, however, you should find that the Government has failed to establish by a preponderance of the evidence that the respondent is mentally ill, the Court may not order the respondent’s hospitalization or treatment, but will order the release of the respondent.
. Bolton v. Harris, supra, 130 U.S.App.D.C. at 10, 395 F.2d at 652. We have no occasion to consider the changes subsequently wrought in § 301(d) by the D.C. Court Reform and Criminal Procedure Act of 1970, P.L. 91-358.
. See 397 U.S. at 363-364, 90 S.Ct. at 1072:
“The requirement of proof beyond a reasonable doubt has [a] vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose hi's liberty upon conviction and because of- the certainty that he would be stigmatized by the conviction. Accordingly, a' society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt.”
. See 397 U.S. at 370-372, 90 S.Ct. at 1076:
“ . . . [T]he reason for different standards of proof in civil as opposed to criminal litigation becomes apparent. In a civil suit between two private parties for money damages, for example,*609 we view it as no more serious in general for there to be an erroneous verdict in the defendant’s favor than for there to be an erroneous verdict in the plaintiff’s favor. A preponderance of the evidence standard therefore seems peculiarly appropriate for, as explained most sensibly, it simply requires the trier of fact ‘to believe that the existence of a fact is more probable than its nonexistence before [he] may find in favor of the party who has the burden to persuade the [judge] of the fact’s existence.’
“In a criminal case, on the other hand, we do not view the social dis-utility of convicting an innocent man as equivalent to the disutility of acquitting someone who is guilty. As Mr. Justice Brennan wrote for the Court in Speiser v. Randall, 357 U.S. 513, 525-526 [78 S.Ct. 1332, 1341-1342, 2 L.Ed.2d 1460] (1958) :
‘There is always in litigation a margin of error, representing error in fact-finding, which both parties must take into account. Where one party has at stake an interest of transcending value— as a criminal defendant his liberty— this margin of error is reduced as to him by the process of placing on the other party the burden ... of persuading the fact-finder at the conclusion of the trial of his guilt beyond a reasonable doubt.’
“In this context, . . . the requirement of proof beyond a reasonable doubt in a criminal case [is] bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.”
. Lessard v. Schmidt, 349 F.Supp. 1078 (E.D.Wis., 3-judge court, Oct. 18, 1972).
. Note, Civil Commitment of the Mentally 111: Theories and Procedures, 79 Harv.L. Rev. 1288, 1291 (1966) ; Comment, Due Process for All — Constitutional Standards for Involuntary Civil Commitment and Release, 34 U.Chi.L.Rev. 633, 654-59 (1967).
. The Court cited as instances cases involving allegations of civil fraud, adultery, illegitimacy of a child born in wedlock, lost wills, oral contracts to make bequests.
. Lynch v. Overholser, supra, 369 U.S. at 714, 82 S.Ct. 1063; Ragsdale v. Overholser, 108 U.S.App.D.C. 308, 313, 281 F.2d 943, 948 (1960).
The jury is routinely instructed: “If you find that the Government has failed to prove beyond a reasonable doubt any one or more of the essential elements of the offense, you must find the defendant not guilty, and you should not consider any possible verdict relating to insanity.” United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969, June 23, 1972, Appendix B.
. 130 U.S.App.D.C. at 10, 395 F.2d at 651: “[A] reasonable application permits Subsection (d) to treat persons acquitted by reason of insanity differently from civilly committed persons to the extent that there are relevant differences between these two groups.”
. In re Franklin, 7 Cal.3d 126, 101 Cal.Rptr. 553, 496 P.2d 465 (Cal.Sup.Ct. en banc, 1972). Tbe court, reviewing the authorities, held that defendants acquitted by reason of insanity represented a special and exceptional class, already involved in a determination that they endangered the public safety as a result of their mental condition, to be distinguished from the class of persons subject to civil commitment because of only potential danger. The court saw no basis for distinguishing between the insanity-acquitted, and those sought to be civilly committed, in terms of right to jury trial, but held that the stringent burden resting on the Government as- a condition of civil commitment did not apply to continuation of commitment of those who had established an insanity defense. We regard that principle as sound, without passing on the question whether we would extend it as far as the California procedure, where the burden of proof is placed on the defendant, to show by a preponderance of evidence that he was insane at the time of the offense (at the criminal trial), and that he recovered his sanity (in the proceeding to determine whether the post-trial commitment, for examination, should be extended into a continuing commitment).
. Dixon v. Jacobs, 138 U.S.App.D.C. 319, 331-333, 427 F.2d 589, 601-603 (1970) (concurring opinion).
. 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966).
. Matthews v. Hardy, 137 U.S.App.D.C. 39, 420 F.2d 607 (1969).
. See Dixon v. Jacobs, concurring opinion, supra, 138 U.S.App.D.C. at 331-333, 427 F.2d at 602-604.
. Our judgment is without prejudice to a request for periodic examinations, such as are provided for in Bolton, or to a request, after an appropriate period, for determination, in line with the penultimate paragraph of our opinion, of whether further commitment can be justified under the standards pertinent to civil commitment of those dangerous by virtue of mental illness.
Dissenting Opinion
dissenting:
The majority opinion acknowledges that recent Supreme Court decisions
Both Bolton and Mullen were based on Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966), where the Supreme Court held that New York’s statutory procedure permitting civil commitment of persons at the end of jail sentences without the jury trial safeguard afforded persons subject to ordinary civil commitment violated equal protection. The Court held that the fact of past criminal conduct lacked a sufficient connection with current mental illness to justify lesser procedural safeguards. “Classification of mentally ill persons as either insane or dangerously insane of course may be a reasonable distinction for purposes of determining the type of custodial or medical care to be given, but it has no relevance whatever in the context of the opportunity to show whether a person is mentally ill at all.” Id. at 111, 86 S.Ct. at 763. (Emphasis in original.) The Court in Baxstrom further stated that “[a] person with a past criminal record is presently entitled to a hearing on the question whether he is dangerously mentally ill so long as he is not in prison at the time civil commitment proceedings are instituted. Given this distinction, all gemblance of rationality of the classification, purportedly based upon criminal propensities, disappears.”
Bolton and Baxstrom stand for a basic proposition that a proven history of past dangerousness or illness, while certainly admissible in evidence, may not be used as an excuse to abrogate or change well recognized safeguards, including burden of proof, in civil commitment proceedings, or their equivalent, to determine present dangerousness or illness. The majority ignores this teaching of Bax-strom and Bolton. Moreover, my brethren fail to appreciate that acquittal by reason of insanity says precious little on the question whether a person presently suffers from mental illness. At most, an insanity acquittal means that at the time the charged crime was committed, which ordinarily would be months or sometimes years before the Section 301(d) hearing, there was a reasonable doubt that the defendant was free of such ah illness. Since a reasonable doubt as to sanity is hardly tantamount to a conclusion of mental illness, there may well be only the flimsiest relation between the Government’s failure to prove past capacity and current incapacity.
Yet the thrust of the majority opinion is that appellant Brown’s prior acquittal must somehow skew the factual determination to be made in the current Section 301(d) hearing. As I have always understood the issue of burden of proof, the standard we adopt reflects our view as to the risk of error we are willing ¿to accept in our judgments.
The majority’s central proposition is that Brown should be treated differently because he has already been found to have committed a series of indisputably dangerous felonies. These acts are said to dictate lesser solicitude for his rights —as expressed through a burden of proof —than if he were sought to be committed before he was found to have committed such acts. But it should be obvious that these acts, standing alone, go only to the civil commitment standard of dangerousness, which Brown’s counsel has stipulated is not at issue, and not to the additional, central, question of mental illness. Yet the majority opinion is willing to accept the non sequitur that the admitted fact of dangerousness in the past must have a necessary bearing on the court’s finding on the question of illness in the present.
The underlying justification for the majority’s acceptance of this illogic seems to be its fear that strengthening the burden of proof in Section 301(d) proceedings will cause wholesale release of persons acquitted of crimes by reason of insanity. This possibility, coupled with the fact that persons with “meaningful elements of responsibility” may be acquitted by reason of insanity, is said to raise the spectre that the insanity defense may be abused. While this argument has a superficial appeal, it clearly proves too much. For its logical import — a policy of relaxing constitutional safeguards in incarcerating those acquitted by reason of insanity — was rejected in Bolton where we held that mandatory civil commitment following a successful insanity defense was constitutionally unjustifiable and that the procedural safeguards used in ordinary civil commitment proceedings were required. No one will disagree that the imposition of the safeguards required by Bolton reduces the probability that all those acquitted by reason of insanity will be incarcerated. But in my judgment, Bax-strom precludes this court from overruling Bolton, even if a majority of its members were so inclined.
Finally, in my view it is untenable to argue, as does the majority, that this disparity in burdens of proof is justifiable as a means of deterring frivolous insanity defenses. So long as the burden of proof rests on the Government in Section 301(d) proceedings,
It is doubtless true, as the majority suggests, that the insanity defense as it has been administered in this case, when coupled with the Bolton decision, might in theory give rise to a “revolving door” phenomenon whereby persons who have committed dangerous acts may be first acquitted by reason of insanity and next totally freed because of the Government’s inability to meet the standards of proof for civil commitment. But this problem of slippage is not eliminated by the disparity in burdens of proof endorsed by the majority. At best it is only reduced, and at the terrible price of incarcerating persons for a mental illness we are not sure they have.
I respectfully dissent.
. In re Winship, 397 U.S. 358, 361-368, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (due process requires proof beyond a reasonable doubt in criminal and juvenile cases) ; Woodby v. Immigration & Naturalization Service, 385 U.S. 276, 282-286, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966) (due process requires “clear, unequivocal, and convincing evidence” standard of proof in deportation cases).
. This standard has been employed in this jurisdiction in civil commitment proceedings under 21 D.C.Code § 545(b) (1967) and 24 D.C.Code § 301(d) (1967). See Bolton v. Harris, 130 U.S.App.D.C. 1, 10 n. 50, 395 F.2d 642, 651 n. 50 (1968) ; In re Alexander, 125 U.S.App.D.C. 352, 354, 372 F.2d 925, 927 (1967). But the standard has been sharply criticized as too weak. See, e. g., Murel v. Baltimore City Criminal Court, 407 U.S. 355, 359, 92 S.Ct. 2091, 32 L.Ed.2d 791 (1972) (Mr. Justice Douglas, dissenting) ; Note, Civil Commitment of the Mentally 111: Theories and Procedures, 79 Harv.L.Rev. 1288, 1291 (1966). And very recently a 3-judge District Court has ruled that a person may be civilly committed only upon proof beyond a reasonable doubt that he is mentally ill and dangerous. Lessard v. Schmidt, E.D.Wis., 349 F.Supp. 1078 (1972).
. Shortly after Baxstrom, the New York Court of Appeals came to a conclusion similar to this court’s in Bolton. In People v. Dally, 19 N.Y.2d 27, 277 N.Y.S.2d 654, 224 N.E.2d 87 (1966), it held that continuing commitment of persons acquitted by reason of insanity required that the state grant the defendant the benefit of the same procedural' safeguards, jury trial in particular, as were granted all others civilly committed. It said, 19 N.Y.2d at 35, 277 N.Y.S.2d at 660, 224 N.E.2d at 92, that this equivalent procedural protection was required by the “spirit if not the express langu[a]ge of the Baxstrom decision.”
. Bolton v. Harris, supra note 2, 130 U.S.App.D.C. at 8, 395 F.2d at 649.
. See In re Winship, supra note 1, 397 U.S. at 371-372, 90 S.Ct. 1068, 25 L.Ed.2d 368 (Mr. Justice Harlan, concurring) ; Speiser v. Randall, 357 U.S. 513, 525-526, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958).
. The changes made in § 301(d) by the D.O. Court Reform & Criminal Procedure Act of 1970, Pub.L. No. 91-358, 84 Stat. 473-668, while not relevant in this case, seriously alter the procedure for treat
. Because of the ambiguous nature of the very concept of mental illness, see Washington v. United States, 129 U.S.App.D.C. 29, 31, 390 F.2d 444, 446 (1967), and its potentially “grab bag” quality, see Boutilier v. Immigration & Naturalization Service, 387 U.S. 118, 131, 87 S.Ct. 1563, 18 L.Ed.2d 661 (1967) (Mr. Justice Douglas, dissenting), it has been repeatedly recognized that endorsing a mild standard of proof in commitment cases can result in grave injustice. See Murel v. Baltimore City Criminal Court, supra note 2, 407 U.S. at 359, 92 S.Ct. 2091, 32 L.Ed.2d 791 (Mr. Justice Douglas, dissenting) ; Note, supra note 2, 79 Harv.L.Rev. at 1291; cf. Lessard v. Schmidt, supra note 2.