*1 America STATES UNITED ECKER, II, Appellant.
Lewis C. 75-1074.
No. Appeals, Court of
United States of Columbia Circuit.
District
Argued Oct. April
Decided July En Banc Denied 16
Rehearing 17, 1977. Denied Jan.
Certiorari
See *3 Fitch, C., Anthony Washington, D.
W. Weisberg, whom Frederick H. Wash- with (both Court) ington, appointed by D. C. this the brief for appellant. onwas Mary-Elizabeth S. Medaglia, Asst. U. C., Washington, D. with Atty., whom Earl Silbert, Atty., A. and Terry U. S. John J. Adelman, Attys., Roger M. Asst. U. S. C., Washington, D. for were on brief appellee. LUMBARD,*
Before Senior Circuit Circuit, Judge for the Second WRIGHT WILKEY, Judges. Circuit ** Opinion by for the Court filed Circuit Judge WILKEY.
Concurring opinion by Judge filed Circuit LUMBARD. Judge opinion by Circuit
Dissenting filed WRIGHT. J. SKELLY WILKEY, Judge: Circuit appeal is from an order entered This deny- district court December superintendent of request ing Hospital for the condition- Elizabeths Saint of one al release Ecker, II.1 Appellant Lewis C. patients, to reverse the deci- urges Ecker and direct that of the district court sion in his conditional release order with the conditions outlined accordance superintendent’s recommendation. * designation Sitting by pursuant 28 U.S.C. is no court on views. There 294(d). this issue. ** Wilkey Lumbard concurs Ecker, Criminal No. 1. United States Case IV, Proof, the court’s all Part Burden of but Appellee (D.D.C.1974), Appendix Proof, Judges Lum- opinion. As to Burden (App.) separate Wilkey express bard, Wright, He bases his attack on the district court’s staff conference on Ecker’s compe- findings of facts and conclusions of law on tency appellant concluded that was “one of separate grounds. Appellant argues four people the sickest we’ve ever had in this (1) applied the district court an im- hospital.” and, regardless standard of review proper Having been competent found to stand standard, proper made findings trial, appellant elected to jury waive a fact and conclusions of law not based on case to submit his the court stipulated on record; (2) evidence the trial Judge John facts. L. Smith of the United placing proof court erred in the burden of States District Court for the District of this conditional release Columbia found Ecker not guilty by reason (3) rejection proceeding; hospi- insanity separate counts felony prescription tal’s of conditional release un- rape. At hearing murder held im- lawfully deprived appellant of his statutory mediately thereafter appel- determine treatment; (4) right the re- state, *4 present Judge lant’s mental Smith of district quirement approval concluded that Ecker was suffering from a hospital-initiated, conditional release pro- released, mental illness and if he would be deprived appellant posals equal protec- injure likely to himself or others.3 Accord- the laws. tion of We find that the district ingly, Ecker was committed to Saint Eliza- actions, court was correct in its tested Hospital pursuant beths to 24 D.C.Code raised, issues against all four and therefore 301(d)(1).4 § judgment. affirm its 4 January On 1973 a letter from the superintendent of Saint Hospital Elizabeths I. FACTUAL BACKGROUND recommending appellant’s conditional re- May twenty-four 1967 a year On old was lease filed in the district court. The aide was brutally raped senatorial and mur- superintendent asked approve the court to apartment dered in her in Southwest Wash- program conditional release whereby appel- ington, D. days C. Six later Lewis C. Eck- lant could attend vocational classes in Ar- er, II, charged was arrested and with com- lington, Virginia, parents’ and visit his Upon mission of these offenses. Ecker’s home without hospital supervision. At a for a mental motion examination to deter- hearing on 30 January government 1973 the competency mine his to stand trial and his portion that opposed of the hospital’s pro- condition at the time alleged mental of the recommending posal unsupervised home vis- offenses, an issued transferring ap- order position took no proposed itation and on the pellant from the District of Columbia Jail program seeking educational other than Hospital. Elizabeths After almost Saint insure that it was narrowly circumscribed three months of hospital examination the carefully supervised. and Dr. George Saig- members staff involved with the case unan- er, psychiatrist a staff hospital and agreed appellant imously mentally was the author of the conditional propos- ill, competent trial, but stand and that al, was the hearing. witness at the At offenses, alleged him, if committed hearing of the close Smith denied Appel- were caused illness. hospital’s proposal conditional release tentatively diagnosed lant’s condition was toto. sociopathic disturbance, personality sexu- (sadism) (with al deviation organic fea- Appellant appeal noted an to this court addition, tures). the chairman of moved for summary reversal on id., Stipulation App. No. 4 filed in insanity at 15. acquitted solely and is ground that he was insane at the time of its Ecker, 3. United States v. Criminal Case No. commission, he shall be committed ato hos- (D.D.C.1968), App. at 16. mentally pital ill until such time as he pursuant eligible for release to this subsec- provides 4. The statute as follows: (e). subsection tion or any person If tried an indictment or 301(d)(1) (1973). § D.C.Code information for an offense raises the defense 301(d)(1), provides person that a court had ground that the district abused charge acquitted criminal tried on a hospital’s pro- denying its discretion ground solely that he was insane on May 1973 this court denied posal. On 29 the offense shall be confined the time of sponte summari- motion and sua appellant’s mentally for the ill. When the district ly decision affirmed Tribby filed writ of habeas court.5 corpus complaining he was not receiv- Only months after this court’s deci- three treatment, held ing adequate this court superintendent in Ecker Saint sion hearing findings to a was entitled again appellant certified that Elizabeths treatment remanded the the issue of The ready for release. In determin- proceedings. case for further proposal differed conditional release second treatment, ing adequacy patient’s only in it out- proposal first from the Edgerton suggested that on Senior stages whereby appellant’s ac- several lined apply district court should remand the gradually community could cess to judicial following standard of limited discretion. increased view: stages appellant all would be Throughout suggest We do not the court partici- to live at the required particular or can decide what should there, therapy pate in but the first requires. treatment release there would of his conditional day court’s function here resembles ours unsupervised contact with the communi- agency when we review action. We do ty. agency whether the not decide made *5 objected government to this second The decision, only but make sure the best pursuant to section and proposal, D.C. permissible made a and reasonable 301(e)6 hearing a was held in the Code § view of the relevant decision informa- expert court. Four witnesses testi- district range a within broad discre- tion and all four hearing, this and recom- fied at tion.8 the approval hospital’s court mended concluding find no basis for We request. Three release of these conditional this standard of review on the issue narrow called psychiatrists were the witnesses applies hospi treatment adequate also defense; psychologist a the fourth was tal certifications conditional release. government. Smith called Tribby relatpng] essentially was a “decision advisement, matter on took the hospi to the of the internal administration findings 1974 entered of fact 27 December public safety involve the tal” and did not deny- of law and an and conclusions order inherent conditional considerations in a or hospital’s ing proposal. release proposal. unconditional When dis asked to trict court is review the medical II. OF REVIEW STANDARD judgment of a staff on complains that court Ecker district function of internal administration its does overly an broad standard of review applied agency ours when review “resemble[] reject action,” when it decided to conditional exper deference to medical proffered by program oper Saint Eliza should allowed to tise the be Hospital. of his support position In range beths a broad of discretion.” ate “within Tribby hand, primarily relies on v. Came appellant the other when a district On Ecker, patient Tribby Like to review a conditional release certifi ron.7 asked policy pursuant underlying to 24 the basic committed D.C.Code cation I), (Ecker 328; States v. Ecker U.S. 5. United 379 F.2d Id. at at 105. (1973). App.D.C. 9. Dixon v. 301(e) entirety quoted in its 6. Section at note (1970) (emphasis added). 427 F.2d 12 infra. 379 F.2d
7. 126
affecting
public
play,
tors
come into
play, and the court must
into
301(e) comes
the statute and our decisions im-
“pro-
and both
hospital’s proposal
whether
decide
and far
role
heavier
a different
pose
cure for the individu-
treatment
vide[s]
courts.
sponsibilities
affords reasonable as-
manner
the.
al in
safety.”
public
for the
surance
analysis
We turn now to an
of sec
301(e)
dealing
and the case law
tion
standard of review de
The narrow
language
of the statute
this statute.
Tribby only applies when
public
scribed
active,
pas
rather
than
itself describes
factor;
applicability
it has no
safety is not a
sive,
court:
role for
district
(conditional or un
proceedings
in release
weighing
hearing
[I]f, after
301(e).11 To an
conditional) under section
evidence, the court shall find that
may be
a bit what
distilled
ticipate
person
his
of such
warrants
condition
field, which we
decisions in this
discuss
our
release,
the court shall order
below,
analogy
pertinent
agency
under such conditions as the
his release
In that area
hospital grounds.
within
fit, or,
see
if the court does
court shall
may give
degree
district
we and the
find,
the court shall order such
not so
judgment
to the
of deference
hospital.12
to such
person returned
agen
we accord
to the deference
equivalent
here,
action; when,
if,
purpose
for our
Significantly
is to
the lan-
cy
fac
of section
with reference to
hospital boundary,
guage
then other
cross
States,
above;
discretion,
Hough
may
v. United
but the court in its
objection
or
United States or the
shall,
notice,
after due
of Columbia
District
Covington
Similarly, in
136 U.S.
hearing at which evidence as to the
hold a
(en banc),
(1969)
App.D.C.
person
so confined
mental condition of
another situation where a district
court faced
submitted, including
testimony
judgment
medical
asked to review a
court was
affecting only
psychiatrists
hospital.
more
from said
one or
the internal administration
and,
weigh
if the
shall
the evidence
The court
Hospital.
Covington
Elizabeths
Saint
person has recovered
court finds that such
corpus sought
through
of habeas
a writ
sanity and will not in the reasonable fu-
hospi-
ward of the
to a less restrictive
transfer
others,
dangerous
public safety
significant
or
is not a
to himself
tal. Since
ture
*6
unconditionally
person
where a
seeks transfer to
consideration
shall order such
court
hospital,
the
the court
ward within
another
applied
confinement
in said
from further
released
of limited
an-
the standard
review
find,
hospital.
does not so
the
If the court
Tribby. Id. at
187
ques-
endanger
not in the
future
rather itself
decide
ultímate
reasonable
him-
present
status of the
others.
tion: whether
self or
is
patient
such that continued confine-
recognize
statutory
We
that the
standard
jus-
conditional
is
ment
release]
[without
by Judge
Hough
Bazelon
announced
dif
tifiable.27
slightly from
statutory
fers
standard he
without
Continued confinement
conditional
in Bolton v.
later describes
Harris and Dixo
justifiable
release is
unless
district
any conflict,
To the extent of
n.30
we
301(e)’s statutory
determines
section
Hough
standard.
adopt
Although sub
will
patient
standard that
not in
similar,
stantially
it is not technically suffi
endanger
future
himself
oth-
reasonable
or
the district court merely
cient for
to find
ers.
patient
longer likely
“is no
to in
jure
persons
or other
himself
beсause of
here,
To avoid confusion
it
im
Rather,
illness.”31
mental
the court must
portant
identify
separate,
closely
two
but
find that
“will not in the rea
intertwined,
“standards”
that come into
dangerous
future be
sonable
to himself or
play
hospi
when a district court reviews a
words,
In other
agree
others.”32
we
“statutory
tal
certification —the
release
expressed by
the reservations
Judge Leven
standard” and the “standard of review.”
in his Dixon
thal
concurrence:
proper “statutory
standard” was an
provides
The Code
that the court shall
Hough when this court
inter
nounced in
person acquitted
reason
301(e)’s
preted section
conditional release
insanity “if the court finds
per-
that such
provisions
impression.28
as a matter of first
sanity
son has recovered his
will
hand,
today’s
On the other
until
decision
in the reasonable future be dangerous to
the “standard of review” issue had
or
24
301(e).
himself
others.”
D.C.Code §
been discussed
dicta.29 Since our decision
may well
It
be that
the case of a
necessarily
in this case
involves both of
standards,
presents
defendant who
a substantial
aforementioned
will italicize
part
problem danger
in the
holding
of our
that bears
reasonable fu-
ture, by
condition,
review
virtue
standard of
and leave unitalicized
part involving
finding in
statutory
standard:
cannot be made even
release,
approve
In
though
order to
conditional
it cannot
said
danger
that this
“likely.”
we hold
ready
say
district
must inde
I am not
pendently “weigh the evidence” and make a
provid-
difference
standard
de novo determination that the
will
merely civilly
ed for those
committed
Jacobs,
328,
U.S.App.D.C.
27. Dixon v.
138
corpus petitions
at
seeking
unconditional
Constitution.33 ap- if was others questions one of we the Today answer Instead, upon consideration proved.36 to reserve. Judge Leventhal chose file, entire written the appellant’s existence of “a substantial hold that We three testimony psychiatrists oral fu- reasonable danger problem psychologist, files and one adequate for the basis provides ture” case, appellant's argu- and the records of an and confinement detention continued counsel, properly the district court who, Ecker, com- like has ments acquitee insanity it was act —unless criminal found a violent mitted make an “affirmative can district to conclude that Ecker unable Mr. ha[d] probable at least more finding that sufficiently so that under the recovered violently dan- not be he will not that than (or any of release proposed conditions future.”34 in the gerous reasonably be im- could conditions which in the reasonable posed) would stage of to the next We turn now dangerous be to himself or others. future appeal before review —the judicial particu- made with of review This conclusion the standard [was] At our level court. illness, “[f]indings to his its The trial court’s lar reference mental settled: is well clearly nature, set aside unless existence continuing not be fact shall chronic in his mind and his uncertain erroneous.”35 of fantasies them, continuing ability to deal with THE EVIDENCE III. the inci- experiencing, he is turmoil of his misbehavior in 1974 with dents preced- [13,14] explained we in the As patients section, deny respect female Eliza- approval Saint in order ing Hospital.37 the district court was hospital’s certification beths applicable at 602. See to civil committees. 138 33. standards society may question Indiana, reason- of what U.S. 92 On “the v. S.Ct. Jackson evidence, though strong, ably Cady, provide (1972); Humphrey when the v. 32 L.Ed.2d problem (1972); ex- that a substantial establishes S.Ct. L.Ed.2d U.S. danger Herold, a ists and does not show likelihood U.S. Baxstrom 86 S.Ct. recur,” stated, Judge Leventhal will further (1966). Regarding the other 15 L.Ed.2d problem equal protection aof substantial decision I think the existence ramifications of our adequate basis to or detain is not an confine V of this infra. see section man, a man has never harmed his fellow who physical a elements of never committed 52(a). Fed.R.Civ.P. reserve crime. I would like at least to But of a sub- whether existence suggest evi- We do not mean to problem enough be to de- stantial basis in this on the record case would dence (except for someone who tain confine likely support finding a that Ecker be would responsibility) the doubt as to conditionally injure if himself or others act, if an act of committed a criminal at least contrary, To the if the had leased. trial court violence prepared involved—unless the court finding, entirely surplusage, such albeit made finding make some affirmative amply support See the evidence here would it. probable more than not that that it is at least Snyder, States v. United violently dangerous in the he will not (1976), where district court in future. pro- hospital-initiated, unconditional release (footnote omitted). Id. ceeding went further even than likelihood and Note we do not decide whether Id. community that “if released into found slightly stringent Hough or the less standard time, patient] pose present would [the “likely” applies patients to those danger personal and distinct definite violence. did not involve acts of whose crimes safety (quoting of others.” 529 F.2d standards, quick comparison of two For a these court) (emphasis added). district Furthermore, recognize see note 80 infra. requires equal protection the standards Ecker, No. 37. United States Criminal Case acquitees, governing of criminal the release (D.D.C.1974), App. at period equal to who have confined been suggested their In dicta Chief Bazelon has authorized for the maximum sentence crimes, substantially following procedure they as the when the same courts respects plan made im- differ in material from the following also Smith findings of fact: contained in the portant fоr release letter to the *11 28, 1972, on December which Court was time, present At the Mr. Ecker is 4. after a by the Court rejected hearing held suffering from a chronic ill- still particular, In January 1973. both on ness, namely, personality antisocial disor- propose Mr. Ecker be submissions features), severe, (with organic der school and spend to attend released (sadism). sexual deviation parents’ his home. The release time at life, fantasy 5. Mr. Ecker’s observed currently plan before Court offers no upon hospi- his initial commitment at the improvements for the defects in the earli- virtually tal has continued in the same since, among things, other it still plan er intensity up quality present to the provide adequate does not controls over time; by psychological this is evidenced periods during Mr. Ecker he would be on him in tests conducted 1972 and away hospital.38 from 1974. March, 1974, In it was brought to Cognizant frequently this court has
the attention of authorities at Saint Eliz- complex remarked difficult and task that Mr. Hospital abeths Ecker was seek- facing when it a district court is asked to ing patients out female in the deaf pro- whether a at Eliza- decide Saint at gram through the movies and a win- will “in the beths reasonable future be dan- their Members of on ward. the hos- dow others,” or gerous to himself are satis- pital express staff concern with this [sic] judge’s findings fied that the trial here behavior, reprimand- and Mr. Ecker was test, e., preliminary they “pro- i. meet ed. adequate appellate a framework vide April, repri- Mr. Ecker was test, For the final substantive review.”40 improperly touching manded for a female this court we can not on the record before patient on the buttocks. say Judge conclusions on the Smith’s were plan “dangerousness” clearly
8. The
submitted
issue of
erro-
for conditional release in the
on evidence in
letter to the
neous or
based
24, 1973,
August
Court dated
does not
record.41
posed
(or any
review
certifications
conditions of release
which could
301(e):
reasonably
imposed)”
be
he could not rule in
possi-
court must
“dangerousness.”
[T]he
.
. examine
Ecker’s favor on the issue of
may
placed upon
Ecker,
ble conditions that
United States v.
Criminal Case No.
patient’s
release, and the
(D.D.C.1974),
extent
App.
which
1481-67
at 2.
may
expected
those cоnditions
to alleviate
Ecker,
38. United States v.
Criminal Case No.
any
might
harm that otherwise
result
(D.D.C.1974), App. at
1481-67
patient’s
unmodified behavior.
If a com-
bination of conditions
be found that
See,
g.,
McNeil,
e.
United States v.
140 U.S.
dangerous
would reduce the likelihood of
be-
(Bazelon,
App.D.C.
stantially
opinions
hospital.44
from the
that the risk
time
who testified
witnesses
pert
community would be minimal
danger to the
by the court
emphasized
factors
One
participate
allowed
were
appellant
if
the district court’s first denial
support of
program,
was
inner turmoil
still
of certification
of all the facts
informed
Smith
testing,45
psychological
in Ecker’s
reflected
opinion,
it was
base
one of several
again this turmoil was
independent determi
make an
obligation to
motivating factors behind
Smith’s
govern
appellant and the
As both
nation.
appel-
All the witnesses at
decision below.
“dangerous
recognize, the issue
*12
ment
appellant con-
hearing testified that
lant’s
a dif
presents the
court with
ness”
district
life,46
fantasy
and
to
an active
tinues
have
fact, and
question of law
ficult mixed
and
are
indicates that these fantasies
the record
obligation
accept
under no
to
court is
violent, sexual,
aggressive in
and
frequently
questions
law.
experts’ opinions on
of
Particularly noteworthy is Dr.
nature.47
indisputably
Judge Bazelon made this
Chief
appellant’s
of
Shapiro’s characterization
McNeil,42
Judges
and
did
clear Dixon
relationship with his fantasies:
present
opinion
in the court’s
and Robb
MacKinnon
clearly to
Personality
point
tests
rather
in McNeil.43
in which Mr.
struggle
internal
an active
not weighing
we are
the evidence
Since
attempting
grips
to
to come
Ecker
novo,
unnecessary
repeat
do
we deem
fright-
gratifying
both
fantasy
life
concerning appellant’s
of the details
all
he allows himself
ening.
.
.
. When
brought
which were
out
mental condition
fantasies, his
pursuing his
liberty of
hearing
during
say
below. Suffice it to
reality testing appears to become some-
changed very
has
little
situation
fluid,
by primary
characterized
what
I.
opinion
court’s last
in Ecker
ideation;
since this
clearly,
this entire
process
Quoting from Chief
Bazelon’s re-
dangerous and
represents a
still
realm
opinion,
again
in that
find that
marks
disruptive
psychically
force.
potentially
testimony presented
Nevertheless,
anxiety
of the
he is aware
requisite ego
has
con-
up, and
only ambiguities,
real
stirred
raises not
but
distance,
some
rather than
sufficiency
inves-
trol
set
doubts about
out,
condition,
anxiety.
with the
Ecker’s
in order to deal
tigation of
and the con-
act
present are characterized
he was
controls at
clusions drawn therefrom that
His
“dangerousness”
States,
.
42.
The
Jenkins v. United
misconduct,
of future
(en banc).
The likelihood
(1962)
mixed.
This
307 F.2d
expected,
type
misconduct
that the trier
facts is bound
does not mean
fact;
frequency,
questions
probable
are
its
Jenkins,
opinion.
we stated in
such
As
harm,
expected
apparent
and its
whether
any expert
given
weight
to be
“The
likelihood,
sufficiently great
are
to warrant
judge
by the
is exclu-
in evidence
admitted
statutes,
our
are
coercive intervention under
jury.”
sively
at
questions of law.
judge
was the
at 646. Here
U.S.App.D.C. at
at 595
325 n.
F.2d
applied.
rule
and the same
trier of facts
original).
(emphasis in
n. 17
at 504.
patient’s expected
[Although
be-
future
likely
havior,
to result
and the harm
Ecker,
U.S.App.D.C. at
United States
44.
behavior,
expert psychi-
are
matters
1208.
opinion,
suffi-
whether
the harm is of
atric
commitment,
magnitude
to warrant
cient
Id.
of that harm is suffi-
the likelihood
whether
commitment,
again mat-
cient
warrant
(Dr.
22-24,
Saiger);
Transcript
98-100
ters
law.
(Dr. Donohue);
Taub);
(Dr.
188-90
157-58
U.S.App.D.C. at
n.
195 differ from the release they provisions ap- fied procedures, section 301’s commitment involuntarily-committed pa- to plicable holding procedures civil substantially simi- (hereinafter “eommitees”) in tients two re- lar those for to used other civil commit- procedural and one one spects, substantive. provided for must ments commitments procedurally, acquitee before an First can acquittal by reason of insanity. after In the district court in which he be released prisoner whose Baxstrom sentence had approve hospital’s was tried must certi- expired was committed to almost a state ready he is conditional or fication that according institution statutory mental release; a commitee unconditional procedures applied different than those authority chief released civilly “[t]he persons other committed. The Su- public private hospital.”64 or service of preme Court held statutes in substantively, to approve order Second equal protection violative of since they al- district court must release the find prisoner lowed the to be beyond committed acqui- of the release of an terms penal duration sentence without endanger himself or tee will not others affording judicial him the review generally future;65 reasonably foreseeable to civil available committees. e., (i. chief service altogether It is not clear how far this com- superintendent) need find that a Supreme or the court Court has been will- “likely injure mitee is not himself or ing equal protection to extend the rationale persons.”66 other example, Judge Baxstrom. For Leven- thal, concurring separately in Dixon v. Ja- Since 1958 this court has consist cobs, to extend hesitated Baxstrom beyond proposition ently accepted the dan peculiar fact Quoting its situation. from by demonstrated gerousness commission Harlan’s Lynch Justice v. Over- by acquittal crime and reason of insani declared, holser a rational ty constitutes basis for the dis Congress thought, might have parity provisions in release ac how- governing ever, having successfully quitees and eommitees.67 Bolton v. Har claimed procedural insanity punishment, ris court focused on the avoid the ac- this appellant here should expressly issue raised cused then bear the burden of 301(e)’s upheld procedure longer section proving subject he is no acquitees.68 comply In order to abnormality with Bax same mental v. strom Herold Bolton court also modi- produced his criminal acts. Alterna- Compare 301(e) (1973) 289, 291-92, § D.C.Code 667, 257 F.2d (1973). § D.C.Code (1958), denied, cert. 359 U.S. (1959) (footnote S.Ct. L.Ed.2d 1038 301(e), Hough 65. 24 § D.C.Code construed accord, Ragsdale omitted); Overholser, States, v. United generally at 461. See F.2d opinion II of this O’Beirne, (1960); U.S.App. Overholser v. supra. D.C. 545(b), Judge Bazelon, 66. 21 speaking court, §§ D.C.Code 68. Chief for the stated: Leach, explained In Overholser uphold provisions We the release of 24- 301(e) that section though they even differ from civil exceptional applies people— to an class of procedures by authorizing commitment people committed who have acts forbidden review of the decision to release a law, who have obtained “not verdicts of patient. equal protection We do not think guilty by insanity,” reason and who have by allowing offended the Government or the pur- been committed to a mental institution opportunity court the to insure that the stan- category Peoрle suant in that Code. civilly dards for the release of committed by Congress are treated in different fashion patients faithfully applied to Subsection persons who have somewhat similar (d) patients. conditions, but who have not commit- *17 11, U.S.App.D.C. (foot- 130 652 395 F.2d at guilty or verdicts of not ted offenses obtained omitted). insanity note by reason at criminal trials. subjecting by Jackson to a hold that might have considered
tively, Congress
[We]
lenient commitment
provide compulsory
more
appropriate
stringent standard
successfully
of release
for those who
to more
commitment
a
applicable
generally
to all oth-
insanity
defense
order
those
invoke
than
offenses, and
charged
by
discourage
pleas
insanity.
We
not
false
ers
condemning
perma-
him effect to
say
go
further here than to
thus
need
no
institutionalization without
differentiating
nent
considerations
such
or the
showing required for commitment
ascertaining
in-
pertinent
by
for release afforded
opportunity
statutory provi-
[other
reach of this
tended
statutes],
commitment
Indiana de-
civil
sion.
protection
equal
prived petitioner
conclude
these
no reason to
see
under the Fourteenth Amend-
the laws
by Justice Harlan in 1963
penned
words
ment.71
by
scrapped in 1966
Baxstrom v.
were
protection
joined.
Thus,
equal
presented
Bax-
issue
in which
What
Herold
(a)
sharply
case comes
into focus:
procedures
on were
for
in this
strom focused
(need
jury
appellant’s
for
commission of criminal
determi- whether
civil commitment
dangerousness
society
dem-
(b)
equal
extended
acts and
nation)
were
treating
justify
ap-
such acts
onstrated
grounds
prison
to one whose
protection
differently from a civil commitee
pellant
expire (in
did
was about
fact
term
purposes
of release.
proceeding),
expire
to the habeas
prior
thereafter be
on a
and who would
held
Previously, this court has concluded that
new commitment.69
prior
dangerousness
demonstrated
provide
criminal conduct does
a rational
Additionally, Jackson v. Indiana does not
disparities
statutory
basis for some
limits,
clearly
any,
if
define what
Su-
governing commitment and
provisions
preme
place
intends to
on Baxstrom.
Court
distinction
lease.72 The crucial
between
Jacksоn,
defendant, mentally de-
present
case is
Jackson and
that Jack-
mute,
incompe-
deaf
was declared
fective
son, although
robbery charge
he had a
robbery
charge
on a
tent
stand trial
him,
against
not
pending
tried and
department
committed to the state
insanity.
reason of
guilty by
found
until he became “sane.”
mental health
Contending that his
tan-
acquittal by
commitment was
Plainly
insanity
reason of
determination,
having
jury
to a
sentence without
beyond
life
tamount
reflects
crime,
doubt,
except
of a
Jackson claimed
convicted
de
been
reasonable
insanity,
Indiana commitment statute de-
defendant did do the
fense
deceased,
protection.
g.,
He
and have the
equal
argued
act,
e.
kill
prived him
charges
against
the criminal
that constitutes
substantive
that absent
intent
him,
proceed
any exculpation mitiga
have had to
without
or
the state would
crime
(e.
non-insanity
g.,
defenses
self-
civil commitment
statutes
tion in
under other
Overholser,
defense). Lynch
have entitled him to substan-
369 U.S.
which would
Blackmun,
714,
1063,
[1069],
greater
rights.
Justice
82 S.Ct.
8 L.Ed.2d
tially
writing
for a unanimous
Court,70
agreed
[217]
.
.
If
jury
ready
contention:
to make that determination it
with defendant’s
U.S.App.D.C.
See,
g.,
F.2d
at 603
e. Bolton v.
omitted), quoting
Lynch
(footnote
Brown,
v. Ov-
(1968); United States v.
F.2d 642
1063, 1069,
erholser,
369 U.S.
S.Ct.
(1973);
197
acquit completely,
going
appellant
recognize
without
must
fails
that both Chief
insanity
defense.73
consider
in
Justice Warren
Baxstrom and Justice
tempered
Blackmun in Jackson
their hold-
Thus, appellant’s uncontroverted commis-
ings with words of
“Equal protec-
caution.
in-
clearly
of a violent crime
sets the
sion
require
persons
does not
Moreover,
tion
that all
apart
Jackson.
case
stant
identically,
but
require
indication in Jackson that
dealt
there is no
does
commitment was an
a
defendant’s
exercise
distinction made have some rele-
power or
police
necessary
pro-
Indiana’s
vance to
purpose
for which the classifi-
community.
made,”75
e.,
tect
cation is
i.
jus-
“reasonable
(d)
tification.”76 Subsection
patients are
argues
be-
Appellant
that this distinction
differently
treated
from civil commitees
degree
dangerousness
be-
tween the
demоn-
they are “an
adjudicated
exceptional
cause
by pending
charges
class of peo-
strated
longer
justify
slightly
ple”77
“already
sufficient
who have
unhappily
is no
mani-
release standard and the additional
the reality
stricter
fested
of anti-social conduct.”78
301(e).74
hurdle found in section
procedural
Congress has determined that these individ-
proven
that even
Baxstrom holds
Since
pose
significant
uals
risk to the communi-
justify
conduct does
different
criminal
ty
the public
and that
is entitled to the
procedures
at the commit-
standards
protection
additional
by judicial
afforded
applies
stage,
since Jackson
Bax-
ment
supervision.
order to insure that socie-
rationale to release standards as
strom’s
ty’s
properly
interests are
weighed when a
standards, appellant
well as commitment
proposal
considered,
prior criminal
that his
conduct
concludes
requires the district court to make its own
not constitute a rational basis for the
can
independent
pa-
determination whether the
disparate
procedures
standards and
found
endanger
will
tient
himself or others in the
the D.C.Code.
Clearly,
reasonable future.
the D.C.Code's
sound,
Although superficially
procedural
there are
substantive and
distinctions be-
appellant’s logic. First,
acquitees
several
flaws
tween
and commitees have a
331,
Jacobs,
U.S.App.D.C.
Dixon v.
138
at
73.
the State cannot withhold
from few the
(Leventhal, J., concurring).
601
427 F.2d at
protections
procedural
or the
substantive
quirements
for commitment
that are availa-
language
There is
in Jackson
can be
ble to all others.
position.
support appellant’s
read to
After dis-
cussing
the factual context
which Baxstrom
arose,
did
Justice Blackmun wrote for the
Baxstrom
not deal with the
Court:
release,
applicable
imposition
but
its rationale
If criminal
conviction
justify
proce-
just
less
harm
sentence are insufficient
here. The
to the individual
protection against
State,
in-
justifi-
dural and substantive
great
if the
without
reasonable
generally
definite
than that
commitment
cation,
apply
making
can
standards
his com-
others,
filing
available
all
the mere
permanent
mitment a
one when standards
charges surely
criminal
cannot suffice.
.
generally applicable to all
afford
others
him
principle
The Baxstrom
also has been extend-
opportunity
early
substantial
release.
following
insanity
ed to commitment
ac-
724-25, 727, 729,
1851,
at
406 U.S.
at
S.Ct.
1,
quittal,
U.S.App.D.C.
Bolton v.
(footnote omitted).
maximum
against
to discriminate
is unconstitutional
We unhesitatingly
agree with
compared
as
with a
acquitee,
an
commit-
appellant’s contention
right
that he has a
tee,
purposes
for
of release from indefi-
treatment under the least restrictive condi
From that
nite commitment.
moment
possible.87
disagree, however,
tions
We
on, acquitees
appear,
and commitees
in
right
with his assertion that
this
to treat
contemplation,
the Court’s
to be on the
unsupervised
entitles him to the
ment
ac
footing.84
same
the community
cess to
that
per
would be
Similarly,
Humphrey,
in
Justice Marshall
hospital’s
mitted under the
re
recognizes
scope
the limited
of Baxstrom’s
plan.
Saiger
lease
Dr.
when he concedes
applicability
that
crimi-
step-by-step
that a
suggest
reentry
into
may justify
nal conviction
some differences
community is essential to Ecker’s continued
safeguards
if the
procedural
in
differences
improvement.
may,
Be this as it
since
by the nature of the
are “limited
defend-
Judge Bazelon’s
Hough,
decision in
it has
or the maximum
ant’s crime
sentence au-
301(e) precludes
been settled that section
crime.”85
thorized for that
prescribing
Elizabeths from
Saint
communi
patients
Ecker has been institutionalized
for over
ty access for its
unless such access
years,
acquittal by
seven
but absent his
approval.88
receives district court
When a
Judge
Judge
84. Waite v.
87. As Chief
Bazelon and
Robinson
per
opinion:
that, hospital’s in the or oth- 21 “dangerous process”); to himself peutic not be D.C.Code would He proposed assert, conditions. though, does ers” The Government hospital only from the released to be situation Ecker’s does not meet Mr. travel to and from the time to for sufficient “dangerousness” for conditional classes; always he would and attend school 301(e). under Section it asserts release And hospital. evening at night spend that, contrary threshold Ecker’s satisfactory he could progress was If his argument, Government does not bear library and lab work. further time for have proof dangerousness burden on the permission spend might gain Finally he release, opposes despite issue when holidays with fami- his weekends or certain certification.3 hospital’s were seen as ly. All these measures his steps in treatmеnt. logical next I challenge the does not The Government proof question burden of On the stat- release right seek conditional hardly clarity.4 agree ute a model of Indeed it could of treatment. purposes Judge Lumbard that on this record we not; regarded as treatment must should, dispute. not decide this We need re reason for conditional compelling most moreover, especially finally cautious in completely recovered. lease deciding in view of the diffi- Robinson, generally Ashe v. 146 U.S. See Wilkey, culty the issue. exam- 222, 681, 220, (1971); 450 F.2d App.D.C. opinion IV of ple, says Part his 35, Covington v. proceedings “there is no (1969); Tribby v. Cam 419 F.2d assignable proof burden we would eron, U.S.App.D.C. 327, a criminal or civil case.” Yet know it in Cameron, (1967); Rouse 125 U.S. clearly Part II of seems (1966); Hough F.2d App.D.C. States, persuasion place pa- the burden of United (1959) (“temporary perhaps hospital.5 Judge free- tient or Lum- insanity. quitted reason of of an offense civilly (1970), appropri- committed be released that continued Patients confinement itself determines that the district can make an when the ate “unless ‘af- *23 met, statutory requisites finding proba- without firmative that it at least more is See, g., patient] e. 21 D.C.Code view. 548 ble than that will not be vio- [the ” dangerous Wilkey lently op. the in future.’ at 3. Note that the certificate itself sufficient of preponderance standard 18. A for the burden patient. 2 release of the See note to authorize persuasion operate only meant of to in that supra. very limited class cases where the fact find- er, weighing evidence, all the finds him- after provides by four statute methods which The position equilibrium, persuaded self in a may gain insanity-acquitted release. Under instance, position. by In such an is to either expressly places it of them burden two proof party bearing against find the burden of 301(d)(2) patient. 24 §§ on D.C.Code quoted Judge proof. passage from Wil- preserves 301(g) patient’s (k)(3). Section & amounts, key’s unavoidably, opinion therefore petition corpus. gives right for habeas It no to placing persuasion the burden of to proof in such a indication of proceeding, burden (or patient hospital) seeking release. has construed the but this court Judge Wilkey’s II of The discussion Part provision place patient, to the burden on by “a is сlouded the reference to sub- principally because of the usual allocation problem danger the reasonable stantial corpus v. cases. Bolton the burden habeas Wilkey phrase op. never future” —a defined. 12, 1, Harris, U.S.App.D.C. supra note 130 mean, this it can neither at 18. Whatever 301(e) is F.2d at 653. Section likewise 395 test, statutory from the add nor detract as proof, no on but here there is silent burden authoritatively Hough v. United construed compelling the conclu- centuries-old tradition 192, 195, States, U.S.App.D.C. 271 106 F.2d patient is on the sion the burden —or 458, (1959): determining preponder- 461 really hospital, moving party. which is or ance whether the will “will writes, dangerous Wilkey quoting future be not in the reasonable Jacobs, proposed in Dixon v. or others” under the condi- concurrence himself Leventhal’s
203 bard, although agreeing Overholser, Whittaker v. 112 U.S.App.D.C. reached, not be offers his need view that 66, 68, 447, 299 F.2d 449 hospital. is on the But puts the burden glaring The most deficiency lies in the Attorney’s office in the United States District Court’s failure to indicate what (unless position anomalous hires other conditions for release were considered represent hospital-patient po- counsel obviously rejected. Both the statute and — — sition) potentially being upon called and our cases make clear that if the court is represent choosing both on its own sides— dissatisfied with the suggested conditions release, oppose being upon but called if, is, it feels the — lawyer government to serve as for the hos- danger high is too under those conditions— event, pital.6 any certification , it then court’s duty to consider and significant support amounts for the pa- other impose such conditions as will make tient in his effort to secure conditional re- conditional release acceptably safe. United lease; mean must the hurdles are McNeil, v. supra, States 140 U.S.App.D.C. high sought not as as if he conditional re- 239, 434 (Bazelon, F.2d at J., 513 C. on his own motion. particular- lease This is concurring); Dixon v. 138 U.S.App. where, here, ly true as the conditional re- 319, 325, 589, D.C. 427 F.2d (1970); lease is for treatment. Hough States, v. supra, United 106 U.S. App.D.C. 195, 461;
II
271 F.2d at
cf. Lake
Cameron,
v.
U.S.App.D.C. 264, 268,
judgment
affirming
dissent from
(1966) (en
banc). The record
the District Court because that
opin
court’s
indicates the District Court’s probably justi
ion does not rest
findings adequatе to
displeasure
fied
with the laxity of some
support
the outcome reached
provide
or to
hospital-proposed
conditions. Tr.
mem
meaningful
judicial
for
review. United
op.
orandum
But more
McNeil,
228, 229,
narrow —and
U.S.App.D.C.
States
still
(1970)
434 F.2d
reasonable —conditions
(per curiam);7
cf.
would
Cameron,
remedy
Millard v.
at least some of
U.S.App.D.C. 383,
problems
quick
(1966),
ly
reversed
come to mind. Yet
after
the District Court
remand,
sub nom. Millard
given
132 has
us no indication of other condi
(1968);
F.2d 964
considered or of the
tions
reasons
reject-
any
may reasonably
tions or
imposed.
others which
explanation
Hough
whatever.
See
v. United
States,
supra
note
my agreement
I do wish to state
with the
gress has Wilkey suggests obliquely past apply only Logical- that the ex- error should to Ecker. testimony unanimously pert might any hospital ly apply in favor as well recom- here— especial entitled to any patient’s conditional release —is release: mendation conditional ago, experts, skepticism because other year| badly wrong hospitals past; been have in the might that Ecker’s illness lead failed to foresee wrong Everyone they might be here. knows they re- he committed when to the murder psychiatric predictions fall well short of Shepard-Pratt Hospital leased him accuracy candidly perfect fact acknowl- —a Wilkey op. This me as at 25. strikes case, experts edged testified who in this pro- deeply and to the unfair Ecker medical seriously g., believes Tr. 119—but no one e. It is well settled that fession. every must recommendation pro- in patient’s present before the rejected. therefore be ceeding condition. is the suggest Judge Wilkey’s I would reliance Cameron, Rouse v. part does not constitute on this factor holding diag- n.43, n.43 Past court. of this error, proven tragically have but noses is, Assessing danger any the likelihood of be- cur- means indicate that this does not doubt, peculiarly wrong. yond difficult necessarily determina- rent medical *25 Covington tion. 35, Moreover, yields suggestion no limit- the (1969), 45-46, 627-628 the always ing principles. in Ecker’s There will be particular explored these difficulties with diagnosis. history the erroneous 1965 case eloquence. was the The issue there whether he can secure Does this mean that never keep lease, in the psychiatrists the decision and matter what the no maximum-security may say was psychologists John Howard Pavilion from the Fur- stand? thermore, why this the course of its consideration there is no inherent reason valid. In the only Most of these factors show that Eek- findings here are in- District Court’s The mentally whether fact not contest- for us to determine er remains ill—a adequate chronic, it asked and an- is undeniably illness and in fact His ed. explanation useful only truly experience fantasies and turmoil. The swered. he does comes in follow- him from con- necessarily decision of this bars of the court’s None Paragraph 9 of the memo- Apart two inci- ing passage release. from the ditional “misbehavior,” opinion: which are exceed- randum dents nature, factor listed ingly minor This conclusion [that bearing is any dangerousness real on particular with is made be should denied] illness, his ability its “uncertain to deal” with Ecker’s reference [Ecker’s] agree we cannot be cer- nature, continuing existence fantasies. chronic ability his to deal with them. and his uncertain tain about in his mind of fantasies them, continuing question is whether that uncer- But the real to deal with ability great tainty the inci- so that Ecker must be con- experiencing, he is turmoil “dangerous” meaning within the in 1974 with sidered of his misbehavior dents granted if Eliza- statute a limited conditional patients at Saint respect to female The District Court must do more release.12 Hospital.11 beths Wilkey op. They at 20-21. contain posed questions as well be elusion. which could in cases like the incidents of a court’s decision certain details of the misbehavior about asked diagnosis amplify they of Ecker’s con- us: one before Beyond showing mentally that Ecker is many splendored dition. “[D]angerousness” is a however, very ill, they light shed little by discriminating thing. muzzled Unless dangerousness determination. likely weigh against crucial analysis, court’s nominal- it is way ly competing wolf considerations the against sheep weighs Wilkey “ambiguities in the same scales: refers to and un weighed sheep is heavier when even if the separately, and to “real doubts about the suffi certainties” ciency always pre- the wolf investigation somehow of Ecker’s condi weighed together. are just great vails when two implies as are tion” which Keeping dangerousness a taut leash is on hospital’s first certifi when considered the danger especially murder, where there is release, difficult for Ecker’s conditional United cation danger admittedly grave since the (Ecker I), Ecker States v. improbability, which theoreti- and since its cally (1973). Wilkey op. 23- gravity, exceedingly dif- discounts its holding misconstrues our in Ecker I. 24. This quantify. ficult to major uncertainties mentioned there have The Moreover, a man has shown himself onсe Ecker has been off medication been resolved: impossible dangerous, to be it is all but effects; years, without untoward two for over prove negative longer him to that he is no incident, elopement an recent at the time specters appel- of the murder menace. I, past faded without of Ecker into years ago (expiated by lant committed repetition. apparent The court ex sentence) long jail may and the murder he factor, pressed lesser reservations about a third years ago have committed more than 10 ob- hasty testing program to which he was hospital very viously haunt yielded subjected and his which doubts about thought granting him least measure of over the turmoil reflected in tests. control * * * Their concern is under- freedom[.] clear the hospital But it was after Ecker I what may fully justified. well be standable provide adequate investiga could do to appears, the murders and the But for all that testing was it has done so. The 1974 tion —and unpredictable consequences will still be there hastily an artificial undertaken to meet twenty years fifty. Appellant or after after Though evidence of deadline. it revealed some murder, of the second was not convicted life, uncertainty fantasy about a continued tacitly hospitalization is not con- clearly controls has been reduced. Ecker’s to John verted into a life sentence Howard. Judge Wilkey supplies with no it is fair to In these circumstances ask remaining am indication whatever of how the appellant can ever demonstrate how up. biguities and uncertainties be cleared pervasive a less confine- his readiness for they up, can cleared If this is because given never improvement evidence of ment: What they looking imprecision psychologi the irreducible prospect for? What is the see, judgments, g., Developments cal in the e. * * * they find it? will ever Commitment, 87 Harv.L.Rev. Law — Civil (1974), being Judge Wilkey sets forth in full the other then Ecker is held to a Congress paragraphs of the memorandum far stricter than has chosen bearing impose. the District Court’s con- have some *26 yes to that why likely improved it answered because “controls”— explain face of the in the question, particularly slowly. deterioration would come With thе suggest- a record certification and hospital’s returning hospital each after- Ecker to the doctors who ing contrary. All four the class, be numerous after there would noon the testified, including the one called where the of intervention” “points Government, hospital’s rec- concurred in the developments note the and take could release and for conditional ommendation 19, 54-60, appropriate action.13 Tr. initiate not be dan- that Ecker would judgment 118, 137-140, 150, 123, 128, 83-84, proposed conditions. Tr. gerous under 197, 203-205. 163, 171, 19, 123, There is in the the District Court suggest not that do moreover, record, impressive range an to accept testimony.14 bound all of this was indicating the vocational evidence may in fact be that Ecker is too danger- It proposed provided to be under therapy any limited reasonable ous continued yield release would court, so, Ecker, But if this and conditions. in Ecker’s because it condition improvement public (for public and indeed has an step the needed next in his provide would liberty interest important in the fellow If his condition were deterio- treatment. thought this un- and in treatment to restore their the witnesses citizens rate —and rejected.” App.D.C. tions as well during have said. should some sidered with fact is (1970). But at the same time the trier cannot disregarding careful porting testimony, could have example, assured. simply faithfully provided to the the court trier of fact portant adduced at and personal That the trial uncontradicted Court has ry” application decision gists. rest among to factual matters within competence This court If the court Where uncontradicted requirement rejecting not bound solely ride monitoring sk to the particular its duty maker’s conclusion hearing. may Douglas views. roughshod Our cases are “not imposed might recently expert testimony. the other monitoring experts’ deterioration [*] was concerned substitute its court is others expert testimony by expert opinions expressed superintending hearing.” wisely psychiatrists 228, 230, necessary have of due legal [*] adequate legal reiterated the * * * opinions, accepting United States v. further in such a fashion evidence, simply pick over what the United according F.2d supervision would charged held required standards does not [*] expert rulеs process appear, * supervisory func- corrective action own that, despite conditions. For that the trier of foundation, States, It must * * * not not [*] and evidence authority for with testimony opinions for with detailed re- * * specialized “elementa- for release mean that arbitrarily the court carry would be psycholo- Supreme his own McNeil, 99 U.S. the im- [*] experts be con choose regard some must “the out tend to Id. to the fullest extent misconduct frequency” mize the n.17, not have two the twofold of fixed approach more the District Court’s factual likelihood sufficient of law: 397 U.S. L.Ed.2d nothing when sis in ceedings for on the of factual supra D.C. C. United States v. Although In this J., questions of may record. “clearly properly determinations at 1209 n.9. 427 F.2d at us to insist that the District Court do so original), note concurring) (footnotes basis of the record before Wilkey’s 240-241, anything proper numerical scales. But we can supra note more then review whether the whether light, I difficulty called says dangerousness of future isit If the determination demanded conditional release. erroneous” when viewed warrant than applied. Again, quoting basis undeniably law.” closely upon questions 434 F.2d at like mathematical am not at all McNeil, supra, characterization factual reject expected, involved. possible. We would then established distinct, n.17. 90 S.Ct. the trial misconduct, to make a determination continued confinement. Wilkey op. “the determining finding analytical clarity difficult to Only after the conclusion is thus Goldberg Kelly, omitted) experts’ opinions it is incumbent We cannot fact. Dixon v. judge 1011, 1022, I do convinced at 226 legal likely established— See its at 22. application acceptable, is court —is (Bazelon, certainly U.S.App. here did probable keep whether Ecker by pro- (empha n.9, harm is type against correct at 325 mini- or is “The level pre- I, *27 Wright’s dissenting opinion, but not its interest health, along obvious with error, claim of the trial focused in a complete to a more are entitled safety), disagreed case with in this judge has indicating why the likelihood statement only experts gave of the who conclusions great to sufficiently adjudged danger was indicating testimony why. without release. bar conditional (or proceeding seeking release is a This today holding Nothing in the court’s release) person of a detained sup- the District Court from prevent would following a verdict that he is guilty of a complete statement if Ecker a more plying but for mental illness. crime The serious a later date for condi- again at apply should responsibility, and he has judge trial course, And, nothing in release. tional though testi- relief even all the may decline holding precludes a District Court today’s experts recommend release. But he fying release later ordering conditional why he comes to a differenct indicate must at that time that it determine should Judge Tamm said in anoth- As conclusion. met.15 tests are statutory connection, requirement of a state- er respectfully dissent. I simple than con- of reasons—“more ment not onerous if the matter was clusion”—“is Rehearing En Banc. for Suggestion On in a conscientious manner in with dealt Clark, Davis v. BAZELON, Judge, and on the merits.” passing Chief Before 379, 380-81, TAMM, McGOWAN, LEVEN- WRIGHT, MacKINNON, ROBINSON, ROBB 1357-58 THAL, WILKEY, Judges. Circuit as a ha- Although this case is structured hearing expert testimony, with corpus
beas by a is also involved is a decision what ORDER (here, unique agency St. Eliza- —a PER CURIAM. Hospital) holding someone detained beth’s appellant Lewis C. suggestion of The predicate court order. The of a hear- rehearing having en banc been Ecker, II for hospital superintendent ing is that full court and there to the’ transmitted certificate, filing for clerk issued judges regular majority of being a court, person that the of his of the having case favor of service in active entitled to release. D.C. confined banc, it is en reheard where 301(e). This is not a situation Code § agency, if it is must defer to the court en banc that the by the court ORDERED by substantial evidence. The supported rehearing en banc suggestion aforesaid court, the hearing is before the court has is denied. responsibility to make the authority decision, hospital agency only and the Judge LEVEN- of Circuit Statement advisory. machinery govern- But if the Concerning Deny To His Vote THAL agency is to make sense the must be ment Rehearing En Banc why it is that the advice of its informed LEVENTHAL, Judge: Circuit rejected. and officials has been staff suggestion rehearing en While forecasting dangerousness is itself interesting questions, some banc raises difficult, dangerous, dangers but the to consider them find it difficult would will be increased unless difficulties my view the issues have not bеen because indicated, so approach of the court focused the record. sufficiently agency experts can that the they can approach, or so that difficulty a more central I think is adhere What when it is re present the situation glimpsed part III of better problem, is the predetermines proceeding by the de- at such time no means before the court 15. The state, proceedings. present mental Rouse v. be Ecker’s in future will cision Cameron, supra and the outcome of this note hence, year 104,105 (1967); Cameron, they viewed a if believe Rouse v. judge’s approach reflects a misunder F.2d 451 standing underlying of their views or the strong showing is a there condi- Where situation.* pur- is needed for treatment tional release *28 especially incumbent it is poses, Judge J. of Circuit SKELLY Statement careful, detailed, to make District Court WRIGHT, in Which Chief BAZEL- findings and explicit statement of its ON and Circuit SPOTTSWOOD W. release, denying for both to assure reasons ROBINSON, III, Join, of Reasons for Vot- properly for treatment that the need ing Rehearing for En Bane. and, importantly, more respected aid Appellant Ecker was committed to St. The hospital planning its future course. Hospital being Elizabeth’s in 1968 after ac- ought hospital to know where to concen- quitted by insanity reason of of the murder that, barring efforts so de- its future trate young 301(d) of a woman. 24 D.C. Code § condition, in Ecker’s terioration hospital In 1974 the certified Ecker acceptable pro- day devise release some for conditional release under id. § posal. (1973) so that he could attend a vocational conclusory findings presented The training by day, returning school to the give hospital Court in this case District night. training each Such guidance. give This failure to real ade- no step seen as an essential in Ecker’s treat- hospital’s reasons in the face of the quate program, since he basically ment had ex- recommending certificate training opportunities all the hausted avail- significant departure lease is a from the hospital. Testimony able scheme, statutory places initial re- hearing firmly supported the conclusion judgment hospi- for this sponsibility of this limited kind is needed release statute indicates tal. The improvement. continued for Ecker’s It also cooperatively court should work in carrying that, strong showing as the provided hos- purpose. out its determined, likely Ecker is not pital reason, For for the other reasons himself or others on condition- dangerous to my panel opinion, dissent from the stated the District Court release. Nonetheless al rehearing en banc. I vote rejected determination and panel A of this court af- release. denied
firmed. consistently
Our cases have underscored importance honoring patient’s right See, g., Robinson, e. Ashe v.
to treatment. 220, 222, Covington Harris,
(1971); U.S.App. (1969); Tribby
D.C. Cameron, person * specifically it is directed to order returned 301(e), to the law, 24 D.C. Code The hospital. hearing will be there contemplates at the condition as to of evidence though submission Even an order of return need not be testimony “including the person confined accompanied “finding,” but rather a state- hospi- psychiatrists said or more of one the court does not ment make the “find- provides the “court release, necessary law then ing” process The tal.” is a statute directs weigh one, the evidence.” requirement shall weighing with a reasoned finds that the court if evidence, to order the court the reason for failure to make sanity and will person has recovered finding concept accountability fulfills the dangerous future underlying government in the reasonable under law. find, not so court does If the himself or others. notes discharge as it is See prior when commit- to final accompanying supra and text. fo- person need not scrutinized ted discharge.” prior to final center rensic 405 U.S. 92 S.Ct. 31 L.Ed.2d Mich, 584 n. 9. In n. 221 N.W.2d at at 543 event, are any the extent that these cases analysis with our decision we believe indepth Humphrey, inconsistent For an Jack- wrongly Baxstrom, son, opin- they decided. see McGowan’s interpre insanity McGowan’s 1973 reason of could have been adhere incar- Baxstrom, Jackson, and Hum tation of cerated for life. prior We believe that conduct, phrey: criminal especially violent conduct case, provides such as that involved in this expressly Jackson holds that justification”86 e., (i. “reasonable problem a rational applicable to the Baxstrom basis) for the proce- from indefinite confinement differences release found in the together, then Hum- dures D.C.Code. . . Read that,