UNITED STATES of America, Plaintiff-Appellee, v. John George SAHHAR, Defendant-Appellant.
No. 88-5413.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Jan. 31, 1990. Decided Oct. 29, 1990.
917 F.2d 1197
IV
Forced as we are to affirm dismissal for failure to exhaust, and despite our efforts to induce settlement, we are appalled by the failure of the Secretary to deal expeditiously with the substantial grievances alleged in this complaint. We have waited in vain since December 12, 1988 for news of a final appealable order by the Secretary. We wait no longer. We remand to the district court for determination, under
AFFIRMED IN PART AND REMANDED IN PART.
Thomas H. Bienert, Jr., Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.
Before NELSON, BRUNETTI and KOZINSKI, Circuit Judges.
KOZINSKI, Circuit Judge:
Under
I
On September 18, 1987, John George Sahhar was indicted under
The court held another competency hearing on July 29, 1988. Sahhar presented no evidence at the hearing. Dr. Donald R. Butts, the psychiatrist in charge of Sahhar‘s evaluation and treatment at the Medical Center for Federal Prisoners in Springfield, Missouri, submitted a report concluding that Sahhar was a paranoid schizophrenic. Dr. Butts also testified that Sahhar was “in a neurotic psychiatric state and ... uncooperative, incoherent and very bellicose and threatening.” R.T. 7/29/88 at 19. According to Dr. Butts, Sahhar was “admitted to the most secure unit” at Springfield and placed “under very close observation ... for his own protection and for the protection of staff members.” Id. at 14. In spite of these measures, Sahhar was verbally abusive to staff members, id. at 24-25, tore up his cell, id. at 21, and on at least one occasion had to be placed in restraints. Id. at 19. Dr. Butts concluded that Sahhar was not competent to stand trial and unlikely to become so within a reasonable period of time. The district court found Dr. Butts‘s testimony persuasive, see id. at 38-39, and recommitted Sahhar for further psychiatric evaluation.
Soon thereafter, the acting warden at the Federal Correctional Institution at Terminal Island, California filed a certificate requesting an involuntary commitment hearing pursuant to
Dr. Hetzel also testified at length about Sahhar‘s “aggressive behavior” while at Terminal Island, including numerous specific acts evincing his dangerousness. R.T. 11/13/88.1 Like Dr. Butts, she concluded that Sahhar suffered from paranoid schizophrenia, and was more likely to act aggressively than unaffected persons. Id. at 58. Dr. Hetzel stated that Sahhar‘s refusal to take medication made treatment in a non-custodial setting infeasible. Id. at 19-22. While recognizing that some of Sahhar‘s behavior appeared “clinically exaggerated” and that his “bark seemed to be much worse than his bite,” id. at 51-52, Dr. Hetzel found that defendant “presented a substantial risk to the safety of other people.” Id. at 15.
Sahhar presented no expert testimony or reports. The only witness he called was his father, George Sahhar, who testified that defendant had never assaulted him and that he did not believe his son was dangerous. George Sahhar did admit, however, to calling the police on at least one occasion when his son became angry, id. at 68, 70-71, and testified about three incidents where his son became angry in his presence: when Sahhar tried to throw a refrigerator at his brother, when he dropped a whiskey bottle to the floor and kicked a telephone because his father would not give him money, and when he broke a window by throwing a cup through it because his father again would not give him money.
II
Sahhar raises a number of constitutional challenges to his commitment under
The treatment of mentally incompetent federal criminal defendants is governed by
III
Sahhar first contends that
A. Although the Supreme Court has on a number of occasions considered the constitutionality of involuntary commitment statutes, see, e.g., Jones v. United States, 463 U.S. 354, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983); Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972); Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966), it has never precisely indicated the standard of review it has exercised in reaching its decisions.4 In Jones, the Court indicated in dicta that the traditional rational basis test applies to involuntary commitment classifications, see 463 U.S. at 362 n. 10, 103 S.Ct. at 3048-49 n. 10, requiring only that the classification be rationally related to a legitimate government interest. See New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976).5 Defendant contends, however, that because “commitment for any purpose constitutes a significant deprivation of liberty,” Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1809, 60 L.Ed.2d 323 (1979), we should review the classification created in section 4246 under a heightened scrutiny standard of review, similar to that used for classifications based on gender. See Craig v. Boren, 429 U.S. 190, 210-11 n. *, 97 S.Ct. 451, 463-64 n. * (1976) (Powell, J., concurring); Associated Gen. Contractors, Inc. v. City & County of San Francisco, 813 F.2d 922, 940 (9th Cir.1987), petition dismissed, U.S. —, 110 S.Ct. 296, 107 L.Ed.2d 276 (1989). Under the heightened scrutiny test, a classification must be substantially related to the achievement of an important governmental interest. See Craig, 429 U.S. at 197, 97 S.Ct. at 456. We need not resolve the standard of review issue, however, as the result in this case would be the same under either standard.
B. The government‘s interest in protecting society from those charged with crimes is both “legitimate and compelling.” United States v. Salerno, 481 U.S. 739, 749, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Thus, “[e]ven competent adults may face substantial liberty restrictions as a result of the operation of our criminal justice system,” id., and the government routinely may classify persons on the basis of their status as criminal defendants. Persons charged with crimes may be subject to arrest, detention and interrogation; they may be searched, photographed, fingerprinted and, if found to be dangerous or a flight risk, held without bail. See id. at 751-52, 107 S.Ct. at 2103-04. And, of course, only criminal defendants face the distinct possibility of conviction and jail time. Here, for example, Sahhar faced up to five years in a federal institution and a substantial fine if convicted. See
Sahhar contends, however, that while Congress may have broad authority over criminal defendants, it may not establish procedures that make it easier to commit those charged with crimes than to commit members of the general population. For this proposition, Sahhar relies primarily on Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966), and Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972); Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972); Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966)).
In Baxstrom, the Court invalidated as a denial of equal protection a New York statute that permitted involuntary commitment at the expiration of a prison sentence without a finding of dangerousness or jury review as required for all other civil commitments in New York. 383 U.S. at 110, 86 S.Ct. at 762. The Court rejected the state‘s contention that the existence of a prior conviction—supposedly proving “criminal tendencies“—was a sufficient basis for affording an individual fewer procedural protections prior to commitment:
Where the State has provided for a judicial proceeding to determine the dangerous propensities of all others civilly committed to an institution of the Department of Correction, it may not deny this right to a person solely on the ground that he was nearing the expiration of a prison term.... All others receive a judicial hearing on this issue. Equal protection demands that Baxstrom receive the same.
Id. at 114-15, 86 S.Ct. at 764.
Even more on point is Jackson, which held that an Indiana statute providing for the commitment of incompetent criminal defendants denied petitioner equal protection because it imposed more lenient standards for commitment and more stringent standards for release than imposed by the state‘s general civil commitment procedures. 406 U.S. at 730, 92 S.Ct. at 1854. The Court was particularly concerned that the statute did not require a finding of mental illness or feeblemindedness—required for ordinary civil commitments in Indiana—but merely that a defendant was incompetent to stand trial. Id. at 727, 92 S.Ct. at 1852. The Court also found that, under Indiana‘s general civil commitment statute, petitioner probably would have been eligible for release in his present condition, but was not so as an incompetent criminal defendant. Id. at 729, 92 S.Ct. at 1853. Rather, on the facts of that case, it appeared that petitioner faced the distinct possibility of permanent institutionalization. Id. at 725-26, 730, 92 S.Ct. at 1851-52, 1854.
Jackson and Baxstrom do provide some support for Sahhar‘s position. As did the statutory scheme in Jackson, section 4246 distinguishes among individuals solely on the basis of their status as charged criminal defendants. And, as did the State of New York in Baxstrom, the government here seeks to justify the distinction by arguing that those affected by section 4246 are already subject to criminal proceedings and, thus, may present a greater risk to society. Nonetheless, Jackson and Baxstrom are not dispositive; other cases teach that not every disparity between commitment procedures applicable to individuals accused of crimes and those applicable to the general population amounts to a denial of equal protection. See Jones v. United States, 463 U.S. 354, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983); Houghton v. South, 743 F.2d 1438 (9th Cir.1984); Hickey v. Morris, 722 F.2d 543 (9th Cir.1983).
In Houghton, we upheld a Montana statute that, as with the one at issue here and in Jackson, applied different standards for the commitment of criminal defendants found incompetent to stand trial than for the general population. 743 F.2d at 1439-40. In contrast to Jackson, the committing court in Houghton made a specific finding of dangerousness. Id. at 1440. There also existed a means by which the committed person could obtain his release similar to the means available for other civilly committed persons in Montana. Id. Thus, we concluded that the differences between the two procedures were not significant enough to constitute an equal protection violation.
Similarly, Jones v. United States considered equal protection and due process challenges to the District of Columbia‘s automatic commitment procedures for criminal defendants found not guilty by reason of insanity. The Court upheld the procedures, even though insanity acquittees had no right to a jury finding of dangerousness. 463 U.S. at 362-63 n. 10, 103 S.Ct. at 3048-49 n. 10. Although the Dis
Here, we find the classification created by section 4246 to be substantially related to important federal concerns. In addition to Congress‘s well-established interest in protecting society from dangerous criminal defendants, Salerno, 481 U.S. at 749, 107 S.Ct. at 2102, section 4246 squarely addresses a unique federal concern—the control and treatment of dangerous persons within the federal criminal justice system who are incompetent to stand trial. Unlike most states, the federal government has chosen not to establish a comprehensive system of civil commitment, reserving to local authorities the principal task of committing dangerous, mentally ill persons. See United States v. Clark, 617 F.2d 180, 184 n. 5 (9th Cir.1980) (“The passage of [section 4246] was not intended to be an invasion of the general field of lunacy, which is reserved to the states.“); E. Beis, Mental Health and the Law, 112-39 (1984) (describing various state commitment procedures). Section 4246 thus is narrowly tailored to apply only to a particular concern of the federal government: dangerous persons charged with federal crimes but found incompetent to stand trial. See Greenwood v. United States, 350 U.S. 366, 375, 76 S.Ct. 410, 415, 100 L.Ed. 412 (1956).
Congress has a substantial interest in enacting legislation targeting those accused of federal crimes, just as it has a substantial interest in enacting legislation addressing other unique federal interests. See, e.g., United States v. Antelope, 430 U.S. 641, 647-50, 97 S.Ct. 1395, 1399-1400, 51 L.Ed.2d 701 (1977) (statute applying only to crimes committed on Indian reservations does not deny equal protection, even though punishment differs from that imposed by states in which reservations are located); United States v. Cohen, 733 F.2d 128 (D.C.Cir.1984) (en banc) (statute providing for commitment of federal insanity acquittees does not deny equal protection even though it applies only in the District of Columbia). By choosing to regulate individuals such as Sahhar, whose conduct implicates substantial federal concerns, Congress is not required to create a national system of commitment for all mentally ill individuals who might present a danger to society. To hold otherwise would burden too heavily the federal government‘s compelling interest in administering its criminal justice system, and would precipitate a massive federal intrusion into a field that has generally belonged to the states.
Moreover, the criteria and procedures under which defendants are committed pursuant to section 4246 are not dissimilar to those employed by many states for general civil commitment,6 and do much to ensure the fairness and accuracy of the commit
The Attorney General is required to place the committed individual in a facility suitable to provide care or treatment given the nature of the charged offense and the condition of the defendant,
shall prepare annual reports concerning the mental condition of the [committed] person and containing recommendations concerning the need for his continued hospitalization. The reports shall be submitted to the court that ordered the person‘s commitment to the facility and copies of the reports shall be submitted to such other persons as the court may direct.
Without question, commitment under section 4246 is a significant infringement on the liberty interests of a person who has merely been charged, and not convicted, of criminal activity. Yet, the federal government‘s decision not to subject the general population to these procedures does not amount to a violation of equal protection where, as here, the government‘s interests are substantial and the procedures are tailored to serve those interests.
IV
Sahhar next challenges the constitutionality of section 4246 because it fails to provide for a jury trial to determine eligibility for commitment.8 He makes a two-pronged argument: First, that the commitment proceedings under section 4246 are “squarely in the routine of the criminal process,” Appellant‘s Opening Brief at 28, and thus require all the procedural protections of criminal proceedings; second, that even if the challenged commitment proceedings are purely civil in nature, due process requires that they be conducted before a jury.
A. The sixth amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” Sahhar argues that since section 4246 proceedings are ancillary to a criminal prosecution, they are penal in nature and, therefore, his right to a jury trial prior to commitment approximates that of a criminal defendant. In short, he claims that his commitment proceeding was nothing more than a “direct substitute” for criminal prosecution. Thus, Sahhar contends that, as in a criminal trial, he was entitled to have a lay jury weigh the evidence and decide whether the facts of his case warranted involuntary commitment.
Sahhar‘s argument is foreclosed by the Supreme Court‘s decisions in Allen v. Illinois, 478 U.S. 364, 106 S.Ct. 2988, 92 L.Ed.2d 296 (1986), and United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987).9 Allen considered whether the fifth amendment‘s guarantee against compulsory self-incrimination applies to commitment proceedings under Illinois‘s Sexually Dangerous Persons Act. The Court held it does not, as the commitment proceedings were regulatory, not criminal in nature, even though they could not be brought unless criminal charges had been filed. 478 U.S. at 370, 106 S.Ct. at 2992. The Court further held that simply because the state provides some of the safeguards applicable in criminal proceedings—rights to counsel, to a jury trial and to confront and cross-examine witnesses, and the requirement that dangerousness be proved beyond a reasonable doubt—does not turn the proceedings into a criminal trial requiring the full panoply of rights
Likewise, Salerno rejected a substantive due process challenge to provisions in the Bail Reform Act of 1984 permitting the pre-trial detention of dangerous individuals charged with certain specified offenses. The Court relied heavily on the fact that the statute advances important regulatory, rather than penal, interests. 481 U.S. at 746-48, 107 S.Ct. at 2100-02. Where Congress‘s purpose in enacting a statutory scheme is to regulate, rather than to punish, the courts must treat it as such, so long as the scheme “may rationally be connected” to the regulatory purpose assigned it and is not “excessive in relation to [that] purpose.” Id. at 747, 107 S.Ct. at 2101 (internal quotations omitted). “[T]he mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment.” Id. at 746, 107 S.Ct. at 2101.
We see no meaningful distinction between this case and Allen and Salerno. As with the detention procedures the Supreme Court considered in those cases, section 4246 protects society by placing into the government‘s custody certain dangerous individuals. Section 4246 is not intended to address past wrongs, but rather to reduce the risk of future harm to persons and property. See United States v. Curry, 410 F.2d 1372, 1374 (4th Cir.1969); see also Addington, 441 U.S. at 428, 99 S.Ct. at 1810 (“[i]n a civil commitment state power is not exercised in a punitive sense“). As soon as the committed individual can demonstrate that he is no longer dangerous, he is entitled to be released. Thus, federal commitment serves a regulatory, rather than punitive, purpose and section 4246 need not incorporate the right to a jury trial. See Commonwealth v. Barboza, 387 Mass. 105, 438 N.E.2d 1064, cert. denied, 459 U.S. 1020, 103 S.Ct. 385, 74 L.Ed.2d 516 (1982) (holding that the sixth amendment jury right does not apply to civil commitments).10
B. Because the sixth amendment is inapplicable here, we turn to Sahhar‘s contention that the fifth amendment‘s due process clause guarantees the right to a jury trial in civil commitment proceedings. In determining whether due process requires a particular procedure, a court must weigh “the liberty interest of the individual” against the government‘s “legitimate interests” in confinement, “including the fiscal and administrative burdens additional procedures would entail.” Youngberg v. Romeo, 457 U.S. 307, 321, 102 S.Ct. 2452, 2461, 73 L.Ed.2d 28 (1982). This test, referred to in this circuit as “the fundamental fairness requirement,” is set forth adeptly in Tyars v. Finner, 709 F.2d 1274 (9th Cir.1983):
In weighing the liberty interest of the individual against the legitimate interests and purposes of the state in the civil commitment process, it is vital that, as a matter of constitutional due process, we impose those restrictions that are “imperative to assure the proceedings’ fundamental fairness.” However, we must also strive to “preserve, so far as possible, the essential elements of the State‘s purpose,” and that we measure the requirements of due process with a sensitive awareness of the need to “permit the orderly selection of any additional protections which may ultimately prove necessary.”
Id. at 1283 (quoting In re Gault, 387 U.S. 1, 72, 87 S.Ct. 1428, 1467, 18 L.Ed.2d 527 (1967)).
Although involuntary “civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection,” Addington, 441 U.S. at 425, 99 S.Ct. at 1809, the procedures required for a civil commitment are not nearly as rigorous as those for criminal trials, id. at 432-33, 99 S.Ct. at 1812-13, or even juvenile proceedings. For example, courts have held that the fifth amendment‘s protection against self-incrimination does not apply to civil commitment proceedings, Allen v. Illinois, 478 U.S. 364, 106 S.Ct. 2988, 92 L.Ed.2d 296 (1986) (commitment of sexual deviants), that a state need only show dangerousness by “clear and convincing” evidence, Addington, 441 U.S. at 431-33, 99 S.Ct. at 1812-13, and that an attorney or guardian ad litem need not be appointed to represent an alleged incompetent at a commitment hearing. Rud v. Dahl, 578 F.2d 674, 678-79 (7th Cir.1978); but see, Heryford v. Parker, 396 F.2d 393, 396 (10th Cir.1968) (holding that such appointment is required). No federal appellate court, however, has considered whether due process gives an alleged incompetent the right to have a jury decide the factual issues in his commitment proceedings, although a number of district courts have held that no such right exists. See French v. Blackburn, 428 F.Supp. 1351, 1361 n. 19 (M.D.N.C.1977), aff‘d mem., 443 U.S. 901, 99 S.Ct. 3091, 61 L.Ed.2d 869 (1979); Suzuki v. Quisenberry, 411 F.Supp. 1113, 1128 (D.Haw.1976); Doremus v. Farrell, 407 F.Supp. 509, 516 (D.Neb.1975); but cf. Lynch v. Baxley, 386 F.Supp. 378, 394 (M.D.Ala.1974) (“although there may be no such constitutional right, we believe in most, if not all, instances a jury is desirable“).
Those district court decisions that have found no due process right to a jury trial in civil commitment proceedings have generally relied on McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), in which the Supreme Court held that there was no right to a jury trial in a juvenile delinquency proceeding. See Suzuki, 411 F.Supp. at 1128; Doremus, 407 F.Supp. at 516; Lynch, 386 F.Supp. at 394. McKeiver held that trial by jury is neither a necessary element of the fundamental fairness guaranteed by the due process clause, nor an essential component of accurate factfinding, 403 U.S. at 543, 91 S.Ct. at 1985. The Court cited as examples equity cases, military trials, workmen‘s compensation, probate and deportation cases, all of which satisfy the requirements of due process even in the absence of a jury. Thus, it could not be said “that every criminal trial—or any particular trial—held before a judge alone is unfair or that a defendant may never be as fairly treated by a judge as he would by a jury.” Id. (quoting Duncan v. Louisiana, 391 U.S. 145, 158, 88 S.Ct. 1444, 1452, 20 L.Ed.2d 491 (1968)).
We similarly believe that any additional procedural fairness ensured by a jury trial is outweighed by the substantial burden a jury would impose on the commitment process. Like juvenile proceedings, section 4246 hearings are relatively informal and discrete, and they do not suffer from the complications and delays often associated with jury trials. The factfinding procedures employed, including the four-month period of pre-commitment observation, facilitate careful evaluation of the individual‘s mental health and dangerousness. Other than “introducing into the process a lay judgment,” Appellant‘s Opening Brief at 29 (internal quotations omitted), defendant has given no tangible reasons why a jury trial would make the commitment process more reliable or just. Because section 4246 hearings often involve difficult medical issues, lay judgment may be of little or no assistance to the factfinding process. Thus, we conclude that due process does not require a jury trial in a section 4246 proceeding.
V
Sahhar finally claims he was denied due process because the government failed to produce sufficient evidence to justify his commitment. Consistent with the requirements of due process, section 4246 requires the government to prove by clear and convincing evidence that an incompetent defendant presents a substantial risk of bodily injury or serious property damage. Sahhar contends, however, that due process and section 4246 also require the government to prove that he had recently committed overt acts evincing his dangerousness.
A. Section 4246 provides little guidance as to how the government must prove that the person to be committed poses a substantial risk of causing bodily injury or serious property damage. In Phelps v. United States, 831 F.2d 897 (9th Cir.1987), we held that the words “substantial” and “serious,” as used in federal commitment statutes, “cannot be quantified.” Id. at 898 (construing broadly identical “substantial risk” language in
Nor do we believe that due process requires a finding that defendant recently committed dangerous acts. In establishing the clear and convincing evidence standard for civil commitments, Addington held that commitment must be based on “something more serious than is demonstrated by idiosyncratic behavior.” 441 U.S. at 427, 99 S.Ct. at 1810. Otherwise, Addington placed no due process limits on the range of evidence a court may consider in reaching its decision. So long as the government can “justify confinement by proof more substantial than a mere preponderance of the evidence,” it may satisfy the requirements of due process. Id. Applying this standard, we now determine whether the evidence was sufficient to justify Sahhar‘s commitment.
B. Reviewing the evidence in the light most favorable to the government, we must decide whether a rational trier of fact, applying the clear and convincing standard of proof, could have found Sahhar to be dangerous. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Here, the district court received ample evidence demonstrating that Sahhar posed a substantial risk of causing future harm. During his period of evaluation and treatment from November 1987 until October 1988, Sahhar verbally and physically threatened staff members and other inmates, had to be physically restrained on at least one occasion, damaged at least three cells in which he was housed and physically assaulted a psychiatrist by approaching her from behind and squeezing her neck. Each of these acts occurred within a year of his commitment, and each clearly indicates the potential for risk to persons and property.
The government also presented testimony and reports from two mental health professionals who had treated Sahhar, Drs. Butts and Hetzel, who concluded that Sahhar was a paranoid schizophrenic and would continue to exhibit aggressive behavior. Their findings are consistent with evidence of nearly a decade of violent, antisocial behavior by defendant: Defendant repeatedly has had trouble controlling his temper, and has on numerous occasions manifested his emotions in aggressive behavior. “It comports with common sense to conclude that someone whose mental illness was sufficient to lead him to commit a [dangerous] act is likely to remain ill and in need of treatment.” Jones, 463 U.S. at 366, 103 S.Ct. at 3050; see also Clark, 617 F.2d at 186. We therefore conclude that the district court‘s finding that defendant posed a substantial risk of bodily injury and serious property damage was supported by substantial evidence.
VI
The judgment of the district court is affirmed in its entirety.
D.W. NELSON, Circuit Judge, dissenting.
I respectfully dissent.
The majority holds that appellant had no right to a jury trial under the sixth amendment. I agree. I disagree, however, with its rejection of Sahhar‘s claim that
Equal Protection
I. Level of Scrutiny
Neither the Supreme Court nor the Ninth Circuit has ruled expressly on the level of scrutiny which is appropriate for classifications affecting involuntary commitment. However, in Hickey v. Morris, 722 F.2d 543, 546 (9th Cir.1983), the court noted that Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972), and Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966), suggest that the “heightened rational basis test” is appropriate. The Hickey panel declined to decide the issue, however, since in that case “the challenged classifications survive[d] even heightened scrutiny.”2 722 F.2d at 546.
I agree that heightened scrutiny is suggested by Jackson, Baxstrom and Humphrey. Applying the rational basis test to
The majority does not decide this issue holding that this statute, like the one in Hickey, is constitutional under either a rational basis or a heightened scrutiny standard. Because I do not believe that the statute satisfies the heightened rational basis test, I feel that it is necessary to reach this issue and apply heightened scrutiny.
II. Analytical considerations
The majority notes that Baxstrom and Jackson provide some support for appellant‘s position but points out that
Federal criminal defendants have the right to a jury trial when threatened with six months or more of imprisonment. Codispoti v. Pennsylvania, 418 U.S. 506, 512, 94 S.Ct. 2687, 2691, 41 L.Ed.2d 912 (1974). Within this class of federal criminal defendants is a subclass suspected of being dangerous by virtue of mental disease. Under
To survive an equal protection challenge under the applicable heightened scrutiny standard, the differential treatment afforded Sahhar and those similarly situated must be substantially related to an important government interest. According to the majority, that interest is twofold: (1) the protection of society from “dangerous criminal defendants,” and (2) the control and treatment of dangerous persons within the federal justice system.
I do not dispute that “Congress has a substantial interest in enacting legislation targeting those accused of federal crimes.” I also appreciate the government‘s need to protect its citizens from dangerous criminals. I cannot agree, however, that these interests are substantially related to a statutory classification which denies a jury trial to federal criminal defendants facing involuntary commitment based on the suspicion that they have a mental defect rendering them dangerous. Denying a criminal defendant the right to a jury determination of dangerousness does not make our streets safer; it merely compromises the procedural integrity of the judicial system.5
The instant case is likewise distinguishable from McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), on which the majority relies, which held that jury trials are not constitutionally required in juvenile proceedings. McKeiver did not address the issue of equal protection. From the standpoint of equal protection, the government‘s interest in withholding a jury trial is much clearer in the case of juveniles. As the Supreme Court noted, requiring jury trials in juvenile proceedings would “put an effective end to what has been the idealistic prospect of an intimate, informal protective proceeding.” McKeiver, 403 U.S. at 545, 91 S.Ct. at 1986. There is no such idealistic prospect at work with respect to individuals such as Sahhar. In the instant case, the government‘s interest is not to decriminalize the process for humanitarian reasons, as in McKeiver, but rather, as the majority notes, to protect society from dangerous criminals. Denying jury trials is simply not substantially related to this interest.6
III. Conclusion
Because I believe that
KOZINSKI
Circuit Judge