Winfred Overholser, Superintendent, St. Elizabeths Hospital v. Frederick C. Lynch , 288 F.2d 388 ( 1961 )

FAHY, Circuit Judge,

with whom EDGERTON and BAZELON, Circuit Judges, join, dissenting.

Frederick C. Lynch, appellee, petitioned the District Court for a writ of habeas corpus to obtain his release from restraint at St. Elizabeths Hospital. Appellant, the Superintendent of the Hospital, interposed as legal basis for the restraint an order of the Municipal Court of the District of Columbia of December 29, 1959, committing appellee to the Hospital pursuant to the provisions of 24 D.C.Code, § 301(d), as amended, “after having been found not guilty by reason of insanity on charges of Passing Bad Checks.” The charges were misdemeanors involving two checks of $50 each cashed in October 1959.

As a result of the District Court proceedings Judge McGarraghy concluded that the Municipal Court lacked jurisdiction to “permit the government to obtain commitment of the petitioner as of unsound mind by use of a criminal proceeding in substitution for civil commitment procedures established by law.” He held that petitioner, therefore, was illegally detained at the Hospital and concluded as follows:

“[T]hat the writ of habeas corpus shall issue and the petitioner be restored to his liberty unless within ten days from the date of this Order, or such extension thereof as may be granted by this Court for good cause shown, civil proceedings for the commitment of the petitioner shall be instituted, in which event the petitioner shall remain in the custody of the respondent until final determination of said civil proceedings.”

I agree with Judge McGarraghy as to the invalidity of the commitment, and in the solution he reached above set forth. Both the public and the private interests are protected by the course he directs: the individual concerned is held no longer by virtue of the invalid trial, and the public as well as the private interests are protected by conditioning the individual’s release upon the outcome of future proceedings under our Code, 21 D.C.Code § 306 (1951), for the commitment of persons of unsound mind.

The reasons I think the Municipal Court commitment was invalid are first stated. As the result of pretrial proceedings appellee was found competent to stand trial. He was represented by-counsel. When the cases were called for trial he sought to plead guilty, choosing to accept what punishment might be imposed for the two misdemeanors. The court refused to permit the guilty pleas, obviously believing there was a substantial question whether appellee was of sound mind when the checks were cashed. Thus a serious question arose involving the right of a person accused of a misdemeanor, who is com-' petent to plead guilty and is represented by counsel, not to be compelled by the court to enter a plea of not guilty. I do not find it necessary to resolve this most difficult question, because even if it be assumed that the Municipal Court could compel this, and validly did so in this case, nevertheless I think the commitment which eventuated from the trial was invalid for other reasons.

Upon refusing the guilty plea the court then brought on the charges for trial over appellee’s objection. We have no transcript of what occurred, and so we cannot accurately reconstruct the events’. In this respect the case resembles O’Beirne v. Overholser, — U.S.App.D. C. — , 287 F.2d 133. As we could not say there, so we cannot say here, that a fair trial was held- in the Municipal Court, with opportunity for appellee to meet the government’s case. As near as we can make out from the data we have, the case was turned into an inquiry concerning appellee’s sanity at the time the checks were cashed. The evidence consisted of the testimony of a psychiatrist that appellee was of unsound mind at that time. Appellee and his counsel were thus confronted with a serious situation affecting appellee, and the record does not show they were given a reasonable opportunity to cope with it by showing appellee was not of unsound mind when the checks were cashed. In the absence of that opportunity, there could be no valid finding that he was not guilty by reason of insanity. Such data as is before us supports the finding of Judge McGarraghy that the Municipal Court proceeding was not a valid trial but an invalid commitment proceeding. In the absence of a valid trial and acquittal by reason of insanity, there could be no valid commitment to St. Elizabeths under section 24-301 (d).

In O’Beirne we remanded for a District Court hearing and findings respecting the fairness of the Municipal Court trial. But the preferable remedy, especially where, as here, more than a year has passed in which the petitioner has been in restraint, is not to order a second District Court hearing about what occurred at the Municipal Court trial, as we did in O’Beirne, but to set aside the commitment.

I, of course, agree with the majority that a person of unsound mind who is charged with crime is not to be sent to prison if the alleged crime was due to his unsoundness of mind. Instead, he should be treated for his condition. See the Holloway, Douglas, Blunt and Williams decisions referred to in the majority opinion. And I readily agree also that criminal insanity is a matter of grave public concern, particularly with respect to the problem of rehabilitation. But these sound general principles are not dispositive of the particular problem raised by the continued restraint imposed upon Lieutenant Colonel Lynch.

In his petition for the writ of habeas corpus appellee does not allege present soundness of mind. He attacks his detention solely on the ground of the invalidity of his commitment.¹ As already stated, I agree with Judge McGarraghy that unless civil proceedings for appellee’s commitment are now undertaken, he is entitled to be released on that ground. Moreover, if the judgment of Judge McGarraghy is sustainable upon, a ground independent of the one asserted by appellee, it should be affirmed. I think such independent ground does appear and that it deprives the issue of the validity of the Municipal Court proceedings of critical significance. Even if the Municipal Court trial were in all respects valid, followed by a valid mandatory commitment under section 301 (d), appellee’s detention would no longer be sustainable on the basis of that commitment.

Section 301(d) — the mandatory commitment provision — and section 301(e) —governing subsequent release — are part of a general plan and are to be read in relationship of one with the other. It is plain that Congress was concerned that an accused person might escape prison by reason of his defense of insanity and be immediately released upon the community, although he had engaged in dangerous conduct. This is what Congress sought to prevent. There is no reason to suppose Congress intended that a person not accused of any dangerous offense and not found to be of unsound mind should be held indefinitely against his will in a mental institution because believed to be a person of bad character; that is, Congress was not establishing a system of “protective” or “preventive” custody of persons neither dangerous nor found to be of unsound mind.

An important factor to be remembered in interpreting the valid scope of section 301(e) is that an acquittal by reason of insanity, which leads to commitment under section 301(d), is not an adjudication of insanity. It is well settled that such acquittal means only that sanity has not been established beyond a reasonable doubt. Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499; Isaac v. United States, 109 U.S.App. D.C. —, 284 F.2d 168; Carter v. United States, 102 U.S.App.D.C. 227, 252 F.2d 608; Douglas v. United States, 99 U.S.App.D.C. 232, 239 F.2d 52.² One in appellee’s position not only has not been charged with a dangerous offense, but has not been adjudged to be of unsound mind.

. The dangerousness referred to in section 301(e), upon which continued restraint is conditioned, as I suggested in my concurring opinion in Ragsdale v. Overholser, 108 U.S.App.D.C. 308, 314, 281 F.2d 943, 949, and see Judge Bazelon’s concurring opinion in Overholser v. Russell, 108 U.S.App.D.C. 400, 403, 283 F.2d 195, 198, is related to conduct comparable to the .offense charged.³ The offenses charged to appellee, the cashing of two “bad checks” of $50 each, were not of a dangerous character within the meaning of section 301(e). Therefore the release conditions of that section do not apply in appellee’s case and his continued restraint cannot be justified under the criteria of that section. It is not of significance one way or the other that these criteria⁴ are to be read through the gloss of applicable decisions of this court.⁵

Whichever criteria are followed it remains true, I think, that Congress in section 301(e) is not concerned with persons who have engaged in any kind of unlawful conduct, however minor, but only with persons who have engaged in unlawful conduct of a dangerous character. The language used conveys the idea of physical danger to persons and, perhaps, to property. I do not attempt to delineate precisely the boundaries fixed by the language used, but obviously they do not encompass any and every minor conflict with the law of which a person has been acquitted because of a doubt about his sanity. Had Congress intended such a broad coverage, it would have used broader language such as “likely to engage in unlawful conduct,” rather than the narrow language of section 301(e), “dangerous to himself or others.”

Our jurisprudence knows no such thing in times of peace as “preventive” or “protective” custody of persons not guilty of crime and not found to be of unsound mind. Congress, of course, was aware of this and did not cloud its enactment with grave constitutional doubts by requiring a person of sound mind to be held under restraint in a mental institution on the theory he had done an act having the elements of a minor and non-dangerous offense.⁶ The most serious constitutional doubts are avoided by giving the provisions of section 301(e) their natural meaning which excludes non-dangerous conduct. It follows that valid restraint of appellee depends upon a finding, never yet made, that he is of unsound mind⁷ and not upon meeting the conditions for release applicable to persons committed under section 301(d). On the issue of his present soundness of mind, appellee’s prior conduct, as well as his present condition, may of course, be considered insofar as relevant.⁸

I would affirm the judgment of the District Court.

1 . See Barry v. Hall, 68 App.D.C. 350, 98 F.2d 222.

2 . And see generally Halleck, The Insanity Defense in the District of Columbia, 49 Georgetown L.J. 294 (1960).

3 . See also Goldstein & Katz, Dangerousness and Mental Illness, 70 Yale L.J. 225, 235 (I960).

4 . For unconditional release.

5 . In Overholser v. Leach, 103 U.S.App.D.C. 289, 292, 257 F.2d 667, 670, it is said the person must be free from “such abnormal mental condition as would make the individual dangerous to himself or the community in the reasonably foreseeable future.” This was approved in Ragsdale v. Overholser, 108 U.S.App.D.C. 308, 281 F.2d 943. In Overholser v. Russell, 108 U.S.App.D.C. 400, 283 F.2d 195, it is said the person must show (1) that he has recovered his sanity; (2) that he will not in the reasonable future be dangerous to himself or others; and (3) that the Superintendent acted arbitrarily and capriciously in refusing so to certify and to recommend unconditional release. See, however, Judge Bazelon’s concurring opinion pointing out that since the issues of violence and nonviolence were not presented by the record, the court’s comments are dicta. Proof of arbitrariness and capriciousness is required also by Leach, and no less is required by Ragsdale.

6 . There was no finding of insanity such as underlay the assumption on which Orencia v. Overholser, 82 U.S.App.D.C. 285, 163 F.2d 763, was decided by this court.

7 . The contrast of section 301(e) with the federal statutory provisions concerning continued detention of federal prisoners as set forth in 18 U.S.C. §§ 4247-4248 (1958) has some significance. If upon a hearing the court for the district in which the prisoner is confined shall determine that the prisoner is insane or mentally incompetent, and that if released he will probably endanger the safety of the officers, the property, or other interests of the United States, the detention of the prisoner is authorized. Such commitment, however, shall terminate when the sanity or mental competency of the person is restored or when the mental condition of the person is so improved that if he be released he will not endanger the safety of the officers, the property, or other interests of the United States; that is, he is to be released if sane or mentally competent. (Emphasis added.)

8 . No doubt a bearing and determination on tbe question of appellee’s present soundness of mind could be bad in tbe babeas corpus proceedings. See Stewart v. Overholser, 87 U.S.App.D.C. 402, 186 F.2d 339. But appellee does not appeal from tbe disposition directed by Judge McGarraghy, which calls for the civil commitment procedures of the Code.