*1 CROSS, Appellant, Thomas B. HARRIS, Appellee.

David W.

No. 22420. Appeals

United States Court of

District of Columbia Circuit.

Argued March April

Decided

Burger, Judge, Circuit dissented in

part.

BAZELON, Judge: Chief appeal This is an from the dismissal petition appellant’s corpus attack- habeas ing his in confinement Elizabeths Saint Psychopath Hospital under the Sexual Act, adopted in D.C.Code §§ Appellant first committed Saint was was 18 Elizabeths in he when tendency years old, on his account public. indecently expose in himself ordinarily punish- exposure Indecent by jail more able sentence of not than days.1 1112(a) 22 D.C.Code§ Appellant Eliza- was confined Saint years. Upon beths release in his he had met he married a woman they patient; aas have one fellow now release, child.2 after his Several months charges however, he was arrested on exposure six different acts of indecent again was once determined meaning psychopath” “sexual within 3503(1) .3 of 22 D.C.Code § hearing in At the commitment Sessions, Court of amining psychiatrists both ex- General from D.C. Gen- Gordon, Hospital, eral Boschulte and Drs. appellant- a sexual concluded that was psychopath under the Sexual outpatient but recommended care Eliza- lieu confinement Saint They beths. testified that renewed hos- pitalization “increase his emotion- Washington, Williams, A. Mr. Edwin many al tensions” and “remove him for ap- court) (appointed C.D. years self-support support from of his pellant. family” anyone.” without “benefit [to] Atty., Woll, Asst. U. S. Mr. David C. prescribed they pro- Instead, a detailed Bress, U. G. S. whom Messrs. David with gram outpatient therapy, coupled filed, and Atty., was at the time brief with tensions. medication to alleviate his Q. Nebeker, Atty., U. S. Asst. Frank Conceding appellant’s of- recent filed, were time the brief fenses he had committed while was been brief, appellee. receiving outpatient treatment, the doc- Judge, BAZELON, and tors Before believed these aberrances were Chief ROBINSON, temporary Circuit caused absence “two BURGER very Together Judges. important people.” exposure knowingly 1. If the to a made years age, child the maxi- under 16 jail year. one mum term is D.C.Code 1112(b) § appel- supplied by information This argument. lant’s counsel on oral deprived dispositions him counsel, psychiatrists less restrictive these appellant’s protection equal program of the laws.8 organize offered says provision Accordingly, hope prevent- he offer some

which would concerning alternative dis- Act conduct ing offensive recurrences positions com- read into the Sexual must be appellant remained in while from to save it Act order munity. *3 infirmity.9 constitutional inclination expressing a decided While appel- offer, Subsequent to the dismissal concluded accept the court this filing petition to the precluded con- lant’s below the Act the terms of that court, to his in this we announced alternatives brief of. less drastic sideration they Harris,10 in v. our decision Millard even if were confinement indefinite Accordingly, appel- examination clearly undertook an preferable.4 we light again, Act in the Sexual off to Elizabeths went Saint lant legislative history the later and of its instant unsuccessful he filed the whence passage corpus. concluded of the 1964 Act. We petition for habeas scope that the of the Sexual argument appellant’s The burden significantly re- Act must be of 1948 Psy- proceedings under ways in order to avoid stricted in two equivalent essentially chopath Act are problems serious constitutional commitments; or- ordinary civil would raised a broad construction be commitments, dinary under civil statutory psycho- term “sexual Hospitalization of the Men- more recent path.” First, insane” the words “not 1964, pos- require tally 111 Act5 ‘mentally must read mean “not be dispositions than less restrictive sible ” “dangerous- Second, finding ill.’ a explored and total confinement must be high probability ness” must on be based a inadequate confine- before found injury.11 of substantial ordered;6 can since ment proceedings appellant below, In the more a are not sexual offenders as dangerous class ordinarily psycho- commit- conceded that he was a “sexual than the class,7 path” mentally under the construction of the stat- ill as his confine- table prevailed possible prior But ute that to Millard. ment without consideration illness, provides: mentally and, (1967) 4. 22 because of that D.C.Code 3508 ill § injure persons “likely patient himself or other If is determined to be tlie liberty.” psychopath, com- remain 21 D.C. the court shall if allowed to at sexual Hospital 545(b) (1967). mit him to Saint Elizabeths Code § to be there until released confined Herold, 107, 8. See Baxstrom v. (Em- accordance with section 22-3509. (1966) 760, 86 15 L.Ed.2d 620 phasis added.) States, U.S.App.D.C. Fuller v. 129 United [herein- 21 501-91 §§ D.C.Code 55-56, 390 F.2d 470-471 Act]. after 1964 Judge Bazelon) ; (opinion of Chief Cam- Mullen, U.S.App.D.C. eron v. 128 545(b) (1967); Lake § 6. 21 D.C.Code (1967). 241-244, 199-202 387 F.2d U.S.App.D.C. Cameron, (1966). F.2d 657 note 8. Fuller v. United Psy- Harris, U.S.App.D.C. the Sexual Bolton v. 7. To be committed Of. (1968) ; chopath Act, F.2d 642 Millard must be v. Cam- one eron, U.S.App.D.C. insane, person, a course of who (1966). repeated matters misconduct sexual power lack of has evidenced such 10. 132 406 F.2d 964 impulses to be his sexual as control dangerous persons ishe to other 151-153, Id. 406 F.2d at inflict in- to attack or otherwise (not mentally ill) ; pain, jury, loss, F. id. at or other evil (dangerousness). objects 2d at 971-978 For of his desire. construction, g., 3503(1) see, earlier e. Carras 22 D.C.Code § Columbia, Hospitaliza- (D.C. District of 183 A.2d 393 be committed under the To Mun.App.1962). Mentally Act, must be one tion of the that, appellant appellee agree brought both Act, forth the 1964 which its abandoned, unless this hoped Millard is drafters an en- serve as lightened case must remanded to determine legislation. It model state whether is in compulsory fact a sexual one authorizes suffering psychopath under the statute as now from “mental illness” and remand, “likely construed. In aid we injure per- himself other import consider its Millard and 545(b) sons.” D.C.Code § application this case. “Mental illness” was defined as psychosis or other which sub- disease ** * I. stantially impairs mental ** Prior to commitment the 1964 health psychopath civil and so-called a sexual (emphasis D.C.Code § mutually commitment were exclusive. added). As noted *4 By Psychopath terms, Act its the Sexual immediately question as raises a statute applies only are “not persons who to any gap for remains to whether there insane”;12 commitment law and civil Psychopath fill.17 to statute the Sexual prior to authorized commitment 1964 anyone is, it well be that That “insane.”13 who were those Psycho- the Sexual committable under enacted, “in- were these statutes When mentally to path ill Act “psy- largely sanity” equated was with injure com- others, also and therefore 14 Psychopath Act The chosis.” Sexual so, If 1964 under .the Act.18 mittable gap commitment in thus filled a Psycho- Sexual commitment under the human- It intended to be a law.15 potential deprive a sexual path Act would punishment to itarian alternative important protections offender several mentally of- potential sexual disturbed Act. the 1964 to him under available thought, who, not be could fenders some Among procedural safe- these who, civilly under committed 19 ju- guards requirement of a and the M’Naghten effect, could not then in Rule alter- inquiry restrictive less dicial into charges plead “insanity” to criminal even discrim- Such to confinement.20 natives arising mis- from their uncontrollable against ill- mentally ill whose ination conduct. conduct in sexual manifests itself ness “insanity” prob- The the attitudes term constitutional raise would serious increasingly anticipated ar- it found reflected were nature of lems.21 “dangerous” sexual Recognizing inadequate16 tificial and relevant conduct Congress given, it trend, at instance but type to be of treatment arbitrary justify under- Senator of North Carolina differences Ervin cannot of the took an examination or conditions procedures extensive commitment effort civil commitment law. This of confinement.22 7, supra. broadly re 12. In See note construed. See been has U.S.App.D.C. 352, Alexander, 854^ 125 (formerly 21 D.C. 13. 53 Stat. 1299 925, 355, 927-928 F.2d repealed 1964). 315; Code § 10, Millard, supra note 18. See U.S.App. supra 10, Millard, 14. note 163-167, App.D.C. at 981- at 149, at F.2d at D.C. 967. concurring). X, (Wright, recognized by explicitly Con- 15. This was Millard, at See 19. gress, emphasized that F.2d at 970. psychopaths” was to be afforded “sexual U.S.App.D.C. Cameron, 124 af- “in a manner similar to the treatment See Lake v. 20. H.R.Rep.No. persons.” 264, 364 forded insane F.2d 657 Cong., (1948), 80th 2d Sess. pp. 1101-1102, infra. Cong.Serv. p. Code Herold, 383 U.S. 22. Baxstrom v. 16. Id. at 406 F.2d at 967-968. Mullen, (1966) Cameron v. 86 S.Ct. 760 235, 242-244, Id. 406 F.2d at illness The 1964 Act’s definition of mental leap to of evidence”25 in the we could Millard we declined record In longer “dangerous conclude that he was was no not there the conclusion persons” meaning any permissible other for the within role Sexual sought Instead, Sexual thus not Act. construing avoid committable it. instant save the statute case, dangerousness appellant’s problems equal protection was not below, overlap new in issue the record not so does arise from an dangerous. permit say held us whether he is commitment law. We civil statutory remand, now must the court have decide “not insane” On words ” ‘mentally question ill’ if determines he is mean read to “not meaning mentally Act.24 not ill.26 the 1964 within the Thus, Psychopath Act the 1948 attempted provide We Millard to an applies only who are those now analytical guide framework lower “mentally compulsory ill,” treat while conclusory applying courts term “mentally ill” who are ment those “dangerous to others.” Without some governed by con This the 1964 Act. “dangerous” framework, could read original relation restores struction ily describing any become a term art exclusivity sexual ship between of mutual would, things one whom we all consider civil psychopath and other commitments ed, prefer on the encounter streets. it remains Under commitments. Congress suppose didWe had whether to show for future cases “dangerous” used such Pickwick *5 any dangerous recidi sexual are in fact Rather, supposed sense. ian that we “mentally ill” within not vists are who Congress to intended the courts refine meaning Act. of the 1964 the broad vague unavoidably concept the of “dan gerousness” case-by-case basis, in on a examining bar, the case at In the the traditional fashion. common-law concluded, appellant con doctors insane”; ceded, the “not but that he is mean, however, This does to consider doctors had no occasion statutory language may that the dis be “mentally whether was nonetheless he regarded. “dangerous” the To be for accordingly no record ill.” Since there is purposes of the Sexual a question, for must remand on we one must be necessary hearing findings of fact likely to or otherwise attack inflict the statute to a determination whether injury, loss, pain, or other evil on the applied appellant. properly to objects of desire his The focus of the is not on ex statute

II. pected conduct, on the harm that but may it unneces found from that Commit In Millard flow conduct. appellant sary simply the the ment cannot based on to decide whether be likely mentally “plethora person the to from determination that a is ill, because U.S.App. supra ceedings Millard, instituted the Hos- 23. note are under Mentally pitalization F.2d 972. 111Act. D.C. at at We here that the for standard com- 153, 406 at 971. 24. Id. F.2d at pulsory treatment under that Act 155, 406 at 973. compul- at Id. well differ from the standard sory Psy- commitment under Appellant he was a sexual conceded that chopath supra for Act. See note implicitly psychopath (and that therefore statutory formulations. different others”) only “dangerous as the he was to prior to statute had been construed note 10 will of course Millard. That concession VI. at 973 and Part showing preclude if can him from he 3503(1) (em- 28. 22 D.C.Code § dangerous under statute that he is not phasis added). limited in Millard. as mentally ill, is his “dan- If pro- gerousness” if will in issue Congress engage It clear particular The court commitment. is that in acts. harm, any, if indefinite did intend authorize also determine must preventive who likely these acts. detention for those have to flow from is that way injury propensity a in is not to behave a that possibility of A mere merely requires enough; offensive obnoxious statute others;30 cer likely. how the threatened harm must For no matter harm be engage Thus, person will substantial.31 commitment that a tain one can be requires Act particular acts, be said the Sexual cannot ** engage likely “likely person inflict found he circumstances that the sexual misconduct injury” also said unless can likely acts, engaged in, where that misconduct will inflict sub- are result if injury upon others. injury.29 stantial must be These determinations question like second The is what of the record in on made the basis justify lihood harm will commitment. particular the court. case before impossible provide It well be testimony expert rele therefore be precise “likely” definition of the term as questions of fact: vant three degree is used in the statute. The mis recurrence of sexual likelihood of necessary support commit likelihood likely frequency of conduct may depend many ment factors. magnitude behavior; (3) the Among particularly consid relevant persons other erations of the ex seriousness result. pected availability harm, inpatient outpatient the in facts, Having found the court expected concerned, and the dividual as a matter must then determine inpatient length required confinement case, a matter stat law—in this ment.32 treat utory facts those construction —whether legal provide commitment. basis courts important particularly It is *6 questions devolve, in must answered mak Two be question to this second not allow ing is this The first expert determination. upon default, witnesses.33 justify magnitude harm will what to tes- asked Psychiatrists not be should supra 159-160, Millard, 155-160, note at Millard, 10 at 406 F.2d at 977-978. F.2d at 973-978. see was MacKinnon of this court. 1948) (emphasis added). . ous menace to in who are a offenses of that character See II of ual final have evidenced that to person if ordinary ^[*] .Mr. Title Mr. id. so, perverts. prominent be ^[*] : extremely punishment? what confined, dangerous MacKinnon: ^[*] Chelf: is a sexual II sexual a bill Cong.Rec. is the repeated It [Title When it society. is aimed at is Act] pervert, aggravated bill menace penalty? Mr. of course now pervert drafting Mr. II became the Sex- they is not aimed at the course of conduct does MacKinnon, is found that a nor is it limited a * * * Speaker, are a at penalty, and, persons What society (April all, except situations. deal he danger- Judge is ought Title who who 33. For 32. For an . L.Ed. criminal than not to flow from the Turnipseed, 219 Meehl, * * * tion” down ance vant See Commitment, 117 U.Pa.L.Rev. 75 (1969), 89 S.Ct. at 1548. also context factors, see test in discussion interpreting On the Justification is made Leary cases, analysis Mobile, (1910), 89 S.Ct. of the said with presumed statutory presumptions v. United see Livermore, Malmquist J. & of these and other Washington depend.” a the “rational connec- require insanity similar fact more substantial K. States, 29, 36-42, 23 L.Ed.2d proved is C. R. that “it can problem defense in v. United U.S. at fact on Co. v. assur- likely Civil rele- laid & more, simply Appellant tify, is, fu- whether Millard, without potential like a exhibitionist, though harm or threatened ture behavior “likely” the record does not psychiatrist For to occur. public disclose that he is also a mastur- defining “may his own mind—be bator. There is no indication in rec- —in Tikely’ anything to mean from virtual ord that he has ever been violent or as- slightly certainty And above chance. hand, saultive. On the other lard, Mil- unlike his will not be a reflection apparently engaged definition he has in nu- ** any expertise, of his own. but merous exposure. recent acts of indecent personal preference safety or liber- Thus, predicates one of the of our hold- course, may ty.”34 psychiatrists ing dangerous Of that Millard was not unwilling provide precise present unable a the Act is not in this case. probabilities, and numerical estimate Appellant may, however, be able to attempting their to so limit demonstrate that he will not be a fre- questioning testimony. can and But quent offender. His doctors offer an bring expert witness’s should out explanation spate lapses his recent meaning expected he testifies that when suggests repetition may that a “likely.” Only harm is or is not when avoidable. appellant The likelihood that properly done can the court has been voluntarily accept will patient a course of out- separate question de- the factual —what prevent treatment which will fre- t gree particular of likelihood exists a quent lapses is factor to be considered legal one—whether case—from determining likely he whether degree found that has been of likelihood injury inflict substantial on others. And provides justification for com- to exist even if cannot that his show mitment. future acts of exhibitionism will in- frequent, he nevertheless be able Millard had been committed because they to show that will be harmless. of exhibitionism and masturbation in public, light of evidence as to the character and performed no such he had but likely viewing size of the audience and hospitalization. during years of six acts the harm suffer, the District expert testimony present- Extensive Court ap- have to consider whether hearing corpus ed at his to show habeas pellant’s potential exhibitionism can be engage con- that he grave danger a sufficiently deemed infrequent duct occasions. warrant an indeterminate commitment. experts exposures that isolated testified likely to of this were acts nature III. psychological to small cause group not, We have *7 either here uniquely of If women.35 sensitive ] any decided questions. constitutional But S rarely expose himself Millard would but “dangerousness” when a determination of all, unlikely prima do at he was facie deprivation liberty, result in a no of ^ presence of this so in the a member of ignore court very can afford to real group. Consequently, record small problems surrounding constitutional in- {' likely inflict not showed he was predicated only upon sup- carceration ¿ substantial harm on others —at least posed propensity to commit criminal acts. vulner- of evidence as to the the absence may “punish- Incarceration not seem injury any ability of viewers jailors, punishment ment” to / but it is self-exposures. jailed.36 his occasional to the Incarceration for mere Legal Dershowitz, “Psychiatry provided grounds 34. behavior. The record no finding any repeated Process: ‘A Knife that Cuts Both for likelihood of ex- ” Ways,’ posures. Millard, supra 10, at Address Delivered note 132 U.S. Sesquicentennial App.D.C. 160, Harvard Law School at 406 F.2d at 978. September 22, Celebration, 1967. Brown, 437, 36. United v. States 381 U.S. testimony 458, 1707, 35. There was small also 85 S.Ct. 14 L.Ed.2d 484 might harmed, only by children but repeated exposure to abnormal sexual 1102 46 acts, propensity punishment by periodic attended review as well as continuing status,37 punishment for sta- but for and assurance fide efforts bona society.38 hardly In particular our

tus is favored in at treatment suited to the indi essence, preven- status detention for vidual detained.47 detention.39 tive may Congress Unquestionably, ignore Only a court”40 could “blind prohibit if even acts exhibitionism debate, in and out Con the intense harm; unlikely to such acts are do serious gress, the Con Congress extent to which may over the punish viola and willful forbidding preventive detent indecent be of laws stitution can tolerate tions anticipated questions have been But the test what ion.41 Similar havior. years,42 may preventive sporadically justify detention but conduct raised legislature analyzed43 It problem rarely simply cannot whether been has pre power prohibit or to may such conduct in some circumstances has Congress permissible. portends.48 fact it detention is in attack evil ventive legislate many so, may protect to be different would have If such detention clearly psychic as on documented esthetic as well a record that based interests — physical harm,44 high probability But and economic. while of serious they give by procedural protections prohibit ugly billboards circumscribed up ugly people offense, comprehensive crim those afforded lock as sig any power suspects.45 to con Detention for the same reason. inal period have to be remove all restric- does nificant time trol an evil California, 660, it, injustice 370 U.S. to resort' to Robinson v. I am loath ; 1417, (1962) judicial 666, discretionary L.Ed.2d tech- 82 8 758 S.Ct. even as a X, (Harlan, nique supplement con- see id. 678-679 conviction of curring) . which defendants as those of offenses stand convicted. supra; California, Edwards 38. Robinson v. 160, 184-185, California, 41, Hearings, 62 314 U.S. see v. 43. But (Jack- (1941) Livermore, 164, cited; Malm- 86 L.Ed. 119 S.Ct. son, J., sources concurring). Meehl, supra quist & note 32. Amsterdam, California, 357, Federal Constitutional Whitney See v. U.S. 274 44. Cf. Crimes 641, Restrictions on Punishment 378-379, L.Ed. 1095 S.Ct. 71 Status, JJ., Obnoxious Holmes, Crimes General (1927) (Brandeis con & Displeasing ness, Police curring) Crimes . Of 205, Like, ficers, 3 Crim.L.Bull. 1, Gault, 27-28, re S.Ct. U.S. ; Ricks v. United cf. Specht (1967) ; 1428, 18 L.Ed.2d U.S.App.D.C. Patterson, S. 1968). (Dec. 23, ; Ct. 18 L.Ed.2d cf. Rumely, 345 U.S. 40. See United States ex rel. Pearson v. Probate Minnesota 41, 44, L.Ed. Court, 270, 275-276, S.Ct. 309 U.S. 60 S.Ct. (Child Bailey v. Furniture Co. Drexel Case), 84 L.Ed. 744 37, 42 Tax Labor 46. Since such detention would based 66 L.Ed. 817 present status rather than the commis Hearings the Subcomm. on Before past act, regular procedures sion of a Rights Constitutional the Senate *8 review would be essential to that a assure Comm, Judiciary, “Amendments to on the basis the commitment continued 1966," Cong., Bail Act 91st Reform Hirabayashi States, exist. v. United Cf. (1969). sess. 1st 81, 108, 1375, 320 U.S. S.Ct. 63 (Douglas, J., 87 L. (1943) Ed. 1774 concur is that of Mr. 42. The classic statement ring) . Jackson, sitting as Circuit Justice Justice States, v. United in Williams California, supra 37, 47. Robinson v. note 1950) 280, (2d : Cir. 665, 370 U.S. at 82 S.Ct. 1417. society Imprisonment protect from predicted Whitney supra California, 44, but unconsummated offenses v. note country unprecedented in this and is so 274 U.S. at 47 S.Ct. 641. danger fraught and so excesses

1103 (3) employed Psychopath Does the on means Sexual Act tions provide principle adequate procedural process purpose.49 This due 53 permit order. indefinite ? to the constitutional detention fundamental record, present confinement theOn (4) Is the absence Sexual appellant under procedural protec- Act of the liberty in- deprive him of his Act would sought tions accorded those to be com- permanently— definitely perhaps —and mitted under the Act 1964 denial a punish- propensity acts vfor to commit a 54 equal protection? Moreover, jail by a fixed sentence. able (5) Act, equal In view 1964 does the appar- ignore, and confinement protection require clause consideration of frustrate, needs. ently his propensity is adequacy for mere a of less Confinement restrictive alterna- Particularly when preventive detention. hospital tives to confinement for “sex- commonly punish- question is act psychopath” ual ? sentence, jail in- only by a able short (6) If less restrictive alternatives though confinement, labeled even definite adequately protect pub- would in fact “civil,” preventive detention with promoting appellant’s lic while re- best vengeance.50 required the Sexual If habilitation, deprivation is confinement a Psychopath Act, raise it would liberty is- many justification constitutional of his difficult without the one but sues: required by process the due clause? poten- (1) Is the harm threatened (7) appellant’s If need for treatment sufficiently serious tial exhibitionist provide requires confined, that he not is in- justification a constitutional definite confinement of his con- liberty deprivation of ? indefinite punishment dition cruel ? and unusual (2) possibility Is that no harm questions These hard be avoided appellant’s from future con fact result psycho- if is not a “sexual large sufficiently incarcera to make duct pot path.” not, If he is he is either possible arbitrary tion based on capricious all, committable at or committable therefore in violation process requires clause? 52 due under the 1964 though governmental pur Leary 49. “[E]ven 52. See v. United 395 U.S. pose legitimate substantial, (1969). 6, 36, 89 S.Ct. 1532 purpose pursued by means that cannot 605, Specht Patterson, v. 386 U.S. broadly personal liber stifle fundamental ; 608, Skinner 87 S.Ct. 1209 of. narrowly can be more ties when the end Oklahoma, 535, 545, 62 S.Ct. 316 U.S. * * * [by] drastic less achieved. 1110, (Stone, 86 L.Ed. 1655 C. achieving pur the same basic means for J., concurring). 479, pose.” Tucker, Shelton v. 364 U.S. Herold, 107, 111, Baxstrom 383 U.S. 5 L.Ed.2d 231 (1966). 86 S.Ct. 760 Millard, Harris, U.S.App.D.C. 1, since we observed that 55. Bolton v. justification (1968), the sole commitment cases psychopath the sexual statute cited. * * * * * dangerousness others Tucker, 479, 488, 56. Shelton v. 364 U.S. realistically we must the statute view 81 S.Ct. 5 L.Ed.2d 231 ' upon pre- one borders close Connecticut, see Griswold v. 381 U.S. which un- ventive detention —detention 479, 485, 1678, 85 S.Ct. L.Ed.2d require our der statute does even prior conviction of a criminal act. California, 57. Robinson v. 82 S.Ct. 1417 406 F.2d at 973. *9 Whitney California, “mentally 51. v. 274 U.S. 58. Either because he is ill” or (Brandeis 377-378, (1927) “dangerous 641 47 he is not to others.” because S.Ct. JJ., concurring). Holmes, &

1104 remand, he consideration of alternatives seeks in First. On the District Court appellant will have to determine whether petition.59 the instant “mentally is ill” and therefore within purview Hospitalization the the of IV. Mentally if 111Act. But it determines dissenting large opinion part “mentally ill,” he in that it cannot determining “danger- Harris, avoid whether he is con- an on which attack Millard v. meaning the the ous” within of although today.60 But our decision trols light this, Act. of it is holdings of and rationales it misreads the objection to difficult to understand the decisions,61 of issues raises both defining statutory concept of the “dan- respect, importance due we that with all gerous” guidance for the the District of ourselves address constrained ample prec- Court on remand.62 There is the statements. here,63 principles some of dissent’s edent for our action accompanying say (4) 59. See note 6 that we did not that harm segment population text. the could a small of support not be sufficient to a commitment ignore suggests courts 60. The dissent that Act, so under the Sexual wide- Millard” and “the “the dicta of ranging language long was, of as harm that opin- today’s majority of dicta likely occur; (5) that we the of Infra, p. Even if our con- ion.” any any lasting of did exclude statutory of the definition of struction anyone children, women, else sort “dangerousness” in Millard and here could injury” category from the of “substantial sug- dictum, fairly be considered may justify under the commitment gestion open to considerable Act, provided there is evidence that such opinion of Justice Mr. doubt. See likely occur; (6) harm is that Cardozo, speaking unanimous any relying psychiatric the- far from Hamill, 288 U.S. in Hawks v. Court accepted own, simply of ories our we L.Ed. 510 S.Ct. 77 53 testimony psy- Millard the in of (1933) Brush Commissioner of v. of. concerning the conse- chiatrists Revenue, 57 300 U.S. Internal exhibitionism, quences Mr. of Millard’s (1937). But L.Ed. 691 S.Ct. 81 rely must on the ex- as pert this case we reference to “the dicta fact the dissent’s testimony concerning Mr. Cross. today’s opinion Millard” of can of Nor is this list exhaustive. read as an invitation to trial holdings argues ignore question both courts that The dissent “appli- dangerousness foreclosed, been an cases. When there has judicial precise (1) ques- mind to cation did not contest Carroll, question,” hearing, Lessee of Carroll v. was tion the initial (16 How.) 275, 286, 14 U.S. L.Ed. without construc- conducted benefit question (1853), is the decision of the term which reached in tion that we holding Virginia, Millard-, (2) “necessarily” of the case. Cohens v. therefore he Wheat.) (6 264, 399, 5 L.Ed. U.S. must to have that he taken conceded J.). injure (1821) (Marshall, “likely C. We need himself or others” ground, quite phraseology rest on broad a however. so different under the solely Mentally Hospitalization Millard rests Since result “dangerousness,” Act; on the construction therefore he must and that prec- binding that construction constitutes is “dan- taken have conceded he Any suggestion gerous” edent. disregard trial courts as term construed principles words, simple violates of sound Millard. In other two judicial sequiturs, appellant’s See also note administration. non concession of dangerousness before Millard made is con- infra. dangerousness verted into a concession confusion, emphasize: we To avoid limiting construction Congress never indicated has Arkansas, Compare reached. Cole all exhibitionists intention to detain 196, 201, L.Ed. indefinitely “dangerous”; (2) that we question congressional power to did not punish exhibitionism; g., King 63. E. acts of v. United any way App.D.C, 318, 332-333, did not in restrict the kinds Congress may, (1967) ; and interests that Pub. ends Afro-American appropriate means, promote; Jaffe, U.S.App.D.C. 70, 82-84, seek Co.

U05 require authority judicial adopt administration sound would counsel us intelligible it order “unless to make our remand no choice us is left.” United parties Rumely, 41, 46, States court and below.64 v. to the 345 U.S. 73 S. 543, (1953). Ct. 97 L.Ed. 770 For a stat- apparently The dissent Second. eye ute “must be construed with an as either construe statute so possible constitutional limitations so as “likely” read out of it or to the word validity.” to avoid doubts as to its Lu- congres read into it an unascertainable Alexander, 573, 577, cas v. 279 49 U.S. sional intent to confine all exhibitionists 426, 428, (1929). S.Ct. 73 L.Ed. 851 This “dangerous.”65 if the statute Even 66 “principle duty” of wisdom and has so fairly susceptible were of either construc repeated often been it should no however, long tion, line longer and consistent pre- need discussion.67 But banc) (1966) (en ; 649, F.2d 661-663 366 to flow from Mr. Millard’s States, U.S.App. expected 123 Millard, Coleman v. United future conduct. 106-113, 563, 103, 10, 566-573 155-160, D.C. 357 F.2d 132 (en ; Armstrong (1965) banc) v. see taking 406 F.2d at In° 973-978. issue Education, 333, 338- Board of 323 speaks the dissent 1963); (5th injury” Board “psychic 339 Cir. Davis v. “traumatic trauma” 356, Com’rs, bystanders any School without discussion of (5th 1963) (per curiam). Cir. the likelihood that such trauma will in p. fact occur. See 1108 Al infra. corpus proceeding, This a habeas though it be true that in certain any inappropriate particularly thus frequent circumstances exhibitionism is (1964). delay. See § 28 U.S.C. 2243 necessarily “dangerous” within the mean consequently justification for There is no ing Psychopath Act, of the Sexual express suggestion the dissent’s that we certainly no evidence on the record ei opinion stat- no on construction support ther here or in Millard to applied if the court on ute that must be conclusion; consequently left remand determines that is not open issue on remand. It would there “mentally ill.” Were we to follow the appear fore the dissent is either suggested, course no matter what con- (1) relying upon unmentioned extra- applied by struction was the court psychiatric record theories order remand the case would have to return . dangerous conclude the exhibitionism is appellant’s here for final decision. Since per se, (2) giving or else no effect to the doctors have testified that continued con- “likely” p. word in the statute. See may aggravate condition, finement his 1106 infra. delay be minimized. should sugges- Frankfurter, speaking Nor for a is there warrant 66. Mr. Justice tion that our resolution of the issue a unanimous Court in United v. States Rumely, 41, 47, 543, mere dictum. The distinction between 345 U.S. 73 S.Ct. holding and dictum is not whether L.Ed. 97 770 point question to be had decided in or- g., County Supervisors 67. E. Grenada v. der that could court’s mandate issue. Brogden, 261, 268-269, 112 U.S. 5 S.Ct. The distinction turns on whether 125, Knights (1884) ; 28 L.Ed. 704 court, opinion stating point, its on the Templars’ & Masons’ Life v. Indem. Co. necessary ques- believed decide the Jarman, 197, 204-205, 187 U.S. 23 S.Ct. simply using by way tion of il- 108, (1902) ; 47 L.Ed. 139 Harriman v. lustration of the case at v. hand. Cohens ICC, 407, 422, 115, 211 U.S. 29 S.Ct. (6 Virginia, Wheat.) 264, U.S. 19 399- (1908); Benson, 53 L.Ed. 253 Crowell v. Poller, 400 see United States v. 22, 62, 285 U.S. 52 S.Ct. L.Ed. 76 (2d 1930) (L. 43 E.2d Cir. (1932) ; TVA, Ashwander v. Hand, Hand, Swan, JJ.). A. & See also 288, 348, U.S. L.Ed. S.Ct. Realty Co., Woods v. Interstate 337 U.S. (Brandeis, J., concurring); 535, 537, 69 S.Ct. 93 L.Ed. 1524 Rumely, United States v. 345 U.S. (1949) ; Companies Schutte, Railroad (1953) ; 73 S.Ct. L.Ed. 118, 143, 103 U.S. 26 L.Ed. 327 Watts v. 707-708, United necessary We believe it in this case to 1399, 22 89 S.Ct. L.Ed.2d 664 provide a construction of the statute in Blodgett Holden, See also scope order to cover issues within the 142, 148, 275 U.S. L. hearing. of the remand (Holmes, Brandeis, Ed. 206 upon JJ., decision in Stone, concurring) ; Our Millard turned Sanford & record, Smith, 17, 27, showed no Schneider v. *11 ques- present could exhibitionism to of constitutional shown decision mature rightly grave public risk against so that he the dissent which the tions inveighs may legally indefinitely if we were confined sole- avoided could statute, ly protection. for their But if this is to of the its construction follow acknowledge done, require us be we should at least would that construction since doing. questions what we are We are not confin- the constitutional to confront ing pro- an directly. man in order unfortunate him vide with that will lead ex- Opinions are Third. written locking rehabilitation; to his him we are func- Neither plication instruction. up “protection,” op- for our own in direct having if, concluded tion be served would position to his treatment needs. Aware- must be construed the statute that might impel ap- ness of this fact us to doubts, then made constitutional we avoid greater proach problem humility with sought to of the doubts we no mention and caution. have here nor Millard Neither avoid. any questions. decided constitutional we The dissent takes us to task Fifth. affecting decisions But factors crucial giving weight pos- insufficient to “the kept known as secrets are not to be sibility psychological of serious litigants Bench, bar, and court. to the might result small children” if we were alike ill served would added). (emphasis We are unaware judgment. conceal the bases says of this But the statute possibility.68 apparently con- justified Fourth. The dissent that commitment is if the ** questions person we “likely the constitutional siders to be committed is deciding sought insub- injury” so avoid have inflict on other What- persons.69 very may mention occasions their requisite that ever stantial be the standard told, not,” “a surely “This is rebuke. there is no warrant likelihood,70 strictly involving preventive de- reading “likely” synonymous situation By of the “might possibly.” our construction tention.” make our best to done statute we have premise Sixth. One lies at core dissent But statement true. this dissenting opinion: that exhibition bring issue the statute to read necessarily dangerous, ism is no matter Appel- possible focus. into the clearest assump what the circumstances.71 This Eliza- “treated” Saint lant has been pervades tion so that it dissent can years en- Hospital for fifteen beths —his state, authority flatly with no citation examining life. Both tire adult whatsoever, Congress that has decided hos- further psychiatrists testified dangerous; exhibitionism conse improve pitalization —and quently, objects strenuously the dissent outpa- condition, aggravate while —his hope disregard of a some what it conceives to treatment offers be our tient consequences Perhaps of his Congressional cure. the House But intent.72 (1968) ; pp. L.Ed.2d 72. See 1109-1110 infra: Haynes U.S. Likewise, present case, v. United there is L.Ed.2d by Appellant, 1 88 S.Ct. assertion no or deter- majority, mination it was Congress irrational conclude for to supra note See exposure Appellant’s conduct 978; App.D.C. 406 F.2d at cause harm. supra. (emphasis added). p. (“No * See also * * * * 3503(1) (em- reasons advanced § 69. 22 D.C.Code justify majority phasis added). substitution See notes 28-34 * * * accompanying of its own theories for those of text. legislative branch.”), p. supra. (courts “displace policy should not judgments legislature”). p. (“devastating impact” See infra misconduct”). public of “overt

H07 bill,73 Report,74 tially warehousing Report operation the Senate for social Congressional Record75 are misfits. Congress empty of indication Predicting future and evalu- behavior question, let alone even considered the consequences uniquely dif- its is a ating ficult,- legis Determination of the answered it. impossible if not task.76 It must *12 difficult, and intent is often even lative forthrightly confronted, not avoided be by sugar-coating reality. legislative his careful examination of no There is disagree grounds tory may for leave way escape on this we can record that very however, least, courts ment. At the “penal” incarceration that a reality Congress intent of should determine the days, free in 90 while would set legislative record, and not sim from the “non-penal” solution would the dissent’s ply general of infer from notions it years, for if not him confine proper policy. con- record here the rest of his life. The u¿contradicted testimony expert tains dissent, The in successive Seventh. confinement continued appellant’s attempts paragraphs, this first remove anyone,” out- not “benefit while sphere “preventive of de- from the case patient chance the best treatment offers focusing appellant’s past by tention” improvement his condition. Judi- of conduct, resurrects the tired next speculation for rec- is no cial substitute dealing are not here with cliche penal legislation.” “we ord evidence. of The first these ignores We remand to the District Court paragraphs both the of course proceedings with this language operation not inconsistent of Sexual opinion. requires neither any showing, at- criminal conviction nor ordered. So safeguards by procedural con- tended cases, stitutionally required in criminal Judge (concurring BURGER, Circuit person en- committed has that the dissenting part): gaged specified proscribed conduct. agree remand- I that the case should be together paragraphs And the taken two Harris, light ed of Millard v. willingness with which well illustrate (1968), reality many deny preventive us hearing Ap- for a whether to determine justify a All too often courts detention. “mentally case pellant ill.” is Since by looking punitive disposition past however, remanded, I think is to be ignoring conduct, 'simultaneously while inap- wholly unnecessary indeed —if procedural requirements of criminal by propriate this court intimate —for by invoking promise of cases the false general as to way of obiter views dicta “nonpenal” and rehabilitation. apparent Constitutional issues which of so-called “Non-criminal” commitments majority The never in this case. arise long dangerous persons served as have challenge my ex- their takes issue preventive detention, but this function essentially more no cursion what is into has been either excused or obscured per- “legal expressing literature” than detained, that, po- promise while judges. I their risk sonal views two tential offender will be rehabilitated my strong displeasure view Notoriously, promise of treatment. judges generally confine should bring an il- treatment has served un- hand. to the case at The themselves desirability is essen- such excursions lusion benevolence what 6593, 6747, Cong., H.R.Rep. 2d 80th No. discussion is at 4885-4887. Sess. Dershowitz, S.Rep. Cong., On “Preventive Deten- 2d No. 80th Sess. tion,” Books, Mar. New York Review of 13, 1969, at 22. Cong.Rec. The hill is mentioned 6267, 6310, 4885^887, 3884, 4802, Turning judges substance, pressure on to re- I other matters exerts a portions spond personal mistaken must also dissent from those views be lest “danger- majority opinion relating judicial pronouncement. Appellant already ousness.” has conced- Appellant If is found to be committable judge “dangerous,” ed that he and no Mentally Hospitalization of the under the Millard to the extent is bound to follow applica 111Act1 if that Act found legislate concepts purports that it new to,Appellant, ob it seems to me rather ble “dangerousness.” short, the dicta Constitutionality of the vious more of Millard should no be accorded mandatory provisions commitment standing wide-ranging than the dicta prop Psychopath Act2 would not today’s majority opinion. erly or this be before the trial court Ap- majority In Millard the discounted utility I no Court. therefore see fram *13 pellant’s for ex- demonstrated inclination they ing theory on the that will issues hibitionism which “most women would may “in of remand.” No court be aid * * repulsive” though, find de- even these is ever have occasion to deal with sues; they pending upon sensitivity, their arises, when and if the occasion might “quite upset” “for be but pass the Court on the issue District days’” or three ‘two 146, may open re and in due course it be (1968) (em- By treating here. issues not now view added).4 ought phasis Judicial concern majority us the seems to be reach before fairly apportioned the de- between ing every opportunity to for conceivable linquent offender and the whose victims “illumination”; surely further shed grave. injury may very traumatic beyond advisory opinion our func an is pos- The Millard court also noted the important not These issues should tion. sibility psychological harm of serious anticipated opens so the and to do might from which result small children do wish to criticism we court witnessing “expected Millard’s exhibi- questions to these whatever to entrust tionism,” that none of but concluded Judge of Division and whatever District delinquent the these factors warranted legitimate the later have this Court offender’s commitment. Both Millard g., Cf., Ash- e. them. occasion to resolve majority and the instant has case TVA, 297 U.S. wander placed emphasis on the an undue sub- J., (Brandeis, L.Ed. 688 physically 56 S.Ct. ject’s a or lack of assaultive concurring). nature, denigrating the hazard of violent (emphasis added). I therefore baf am 1. 21 D.O.Code 501-91 §§ majority’s that “On fled statement 3503-08 § D.O.Code remand, the court will have to decide “appellant’s majority question dangerousness] states 3. The if it [of de [the] dangerousness mentally issue below [Appellant] was not termines that is not * * course, 1099). (p. This, (p. 1099) likely of person A is ill.” who Appellant simply necessarily, dis “injure is, did not is because others” “dan “dangerous per being pute thus, gerous others”; to other his a concession likely “dangerousness” or oth he is to attack sons because loss, pain, injury, synonymous or other erwise inflict Act satisfies objects language Hospitalization of his desire.” evil on the of the (emphasis 3503(1) seem, Mentally § D.C.Code as It would 111Act well. added). Appellant question open then, be conceded to When for left purposes ing “dangerous” Appellant “mentally Sex for of the is remand is whether necessarily Act, light Harris, he ual ill” in of Millard v. purview brought App.D.C. 146, himself within the Mentally Hospitalization of the Maryland Di- person and provides Sas v. State that a which Institution, 295 F. of Patuxent rector if there is “reason to believe” detained (D.Md.1969) Supp. “mentally and, n. 12 ill because of the he is similarly (Watkins, J.), expressing injure illness, vehe- or oth himself * * points. on these same ment reactions § 21 D.C.Code ers *.” tary delinquent is so much psychic trauma commitment of a or emo- which tionally inquiry. an subject psychiatric Such disabled offender. But these are “dangerous- equate essentially legislative policy approach determina- seems only physi- tions, involving primarily judicial questions. conduct ness” with ignore poten- Indeed, Congress, being impact; to the it tends sensitive cal damage young. psychic psychiatry to the fact is at an infant tial for best whatever, simply developing discipline employs either and no basis which There sense, changing so imprecise or common in common law standards range public definitions,5 limiting experimented values has a with legiti- legislature may variety provide a statutes rehabil- interests properly system mately protect. prone shel- The law itative for individuals physi- purely psychological as well aberrant conduct. ters sexual Since we penal legislation ad- dealing have been No reasons not here interests. cal justify especially sub- should be this case cautious of substitut- vanced majority ing predilections concerning own the- psy- its our own stitution public policy chiatry fact-finding body psychiatry ories of those formulating legal legislative branch. entrusted with our those policies; social courts have neither individual an case where This is authority nor the facilities nor the com- an solely being committed petence marshalling neces- data engage in antici- imagined propensity to *14 sary displace judgments policy to the of to or pated offensive conduct obnoxious legislature.6 approach the The of of each majority, thus, I others; contrary to the by shaped us all too is to be what a sit- with think confronted do not we are subjects our books we read on the outside strictly preventive de- involving uation discipline. own stipulation Appellant’s record tention. engaged acts recently in various he that undesirability Aside from the of en- supplies basis exposure the indecent of gaging legislative-type speculation, in of institutions one the for commitment colleagues, by expressed my the views Congress. com- designated by A civil here in with both are at odds rendered constitu- not statute is mitment obscenity the Millard recent cases. The preventive tionally suspect form of as a length opinion great discussed at the given case simply in a detention questionable impact groups on various the exceed civil the confinement might public exposure from result imposed a which could sentence given of of a course sexual misconduct. The same acts. for the statute criminal significant discussing it I think that in confinement, disparity possible of virtually problem the in the context same inevitable, may reason- by no means is upholding precluding the of a state law desirability justified by ably the social sale literature minors under obscene pa- necessity providing the public years age, Supreme em- the Court therapy. with tient ployed sensibly a of caus- fluid standard Admittedly ality a multitude are between the condemned material determining psycho- danger sought problems involved in to be The avoided. then logical “require the victims court stated that [d] trauma * * * balancing gravity say not irra- in necessity legislature involun- for the public tional that ex- with the find ity measuring this is found and is an de- An not accurate illustration many “sex as the addressed vice. Jenkins v. United state statutes by rejected U.S.App.D.C. 300, psychopath,” now a term meaning; (en banc), Appel- many psychiatrists as without it was noted that yet I.Q. codes from embalmed in lant’s varied over term is test 63 to 90 this period many jurisdictions. Id. at 315 n. short of time. (dissenting opinion). F.2d at 652 n. acknowledged, widely ex- now It testing ample, util- has limited I.Q. experience. by Stanley Georgia, posure condemned to material Ginsberg 22 L.Ed.2d harmful .minors.” statute (citations omit- York, 88 S.Ct. 319 and footnote v. New griev- (em- ted) added). (emphasis 1274, 1281, However L.Ed.2d 195 though added). potential And it was ous the intrusive of the written phasis even legislative public “very word, find- it seems clear that overt that the doubtful” devastating ings accepted “expresse[d] an scientific has an even more misconduct “ fact,” impact, impact ‘causal link has an destructive of the the fact ” “privacy gen- disproved’ precluded Su- and sensibilities been concluding public.” preme “fault” Court from eral We need assess actor;7 “no rational relation on the lewd but we must statute had * * safeguarding public objective mi- from areas able to remove him Likewise, —gently firmly protect from harm.” order to nors but —in present public carry no out case, there is assertion and to corrective Appellant, ma- determination treatment. jority, for Con- it was irrational gress Appel- exposure conclude that And re- cause harm.

lant’s conduct Congressional gardless whether this

finding “accepted represents scientific an

fact,” “causal link has been since a precluded disproved” court from preferences substituting for the its own Jr., STEWART, Appellant, L. James Congress. Id. 641-643. views gov- Ginsberg also forth standard set case, use and its erns instant America, UNITED STATES Appellee. affirmance since we result fortiori dealing than mere action rather No. 20983. *15 do exercise the words. We would well Appeals United States Court Supreme by the restraint demonstrated District Columbia Circuit. Ginsberg. Court Argued March Moreover, it is well established that Decided Feb. specific legitimately the state shelter Supplemental Opinion July 10,1969. exposure groups of individuals from See, g., Ginsberg v. obscene materials. e. York, supra; Prince Com.

New Massachusetts, 321 U.S. Millard

88 L.Ed. Yet the heavily

Court on the conclusion relied “only proportion popu- a small injured Appellant’s

lation” would be This not contravenes misconduct. recently controlling principles, most Court, Supreme

stated against guard may properly

State might “danger material fall that obscene ** *

into the hands of children upon might intrude the sensibili- ” public; privacy general ties or face commonhuman

it also flies opinion concurring (special 1969) See Adams United J.) (May Fahy, App.D.C. 137, 413 F.2d 411