In re Macklin

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 21-FM-112
IN RE WENDELL MACKLIN, APPELLEE;
DISTRICT OF COLUMBIA, APPELLANT.
Appeal from the Superior Court
of the District of Columbia
(2019-MHE-002056)
(Hon. Jennifer A. Di Toro, Trial Judge)
(Argued May 26, 2022 Decided December 22, 2022)
Holly M. Johnson, Senior Assistant Attorney General, with whom Karl A.
Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor
General at the time the brief was filed, Caroline S. Van Zile, Principal Deputy
Solicitor General, and Ashwin P. Phatak, Deputy Solicitor General, were on the
brief, for appellant.
Kelsey Townsend, Public Defender Service, with whom Samia Fam and
Jaclyn S. Frankfurt, Public Defender Service, were on the brief, for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, and EASTERLY and MCLEESE,
Associate Judges.
Opinion for the court by Associate Judge MCLEESE.
Dissenting opinion by Associate Judge EASTERLY at page 29.
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MCLEESE, Associate Judge: This case arises at the intersection of the
Incompetent Defendants Criminal Commitment Act (IDCCA), D.C. Code
§ 24-531.01 et seq., and the Hospitalization of the Mentally Ill Act (also known as
the Ervin Act), D.C. Code § 21-501 et seq. The trial court concluded that appellee
Wendell Macklin was entitled to release under those acts. We reverse.
I. Factual and Procedural Background
Mr. Macklin was arrested in September 2018 and subsequently charged with
assault and attempted possession of a prohibited weapon (knife). A question arose
about whether he was competent to stand trial, and extensive further proceedings
ensued. During those proceedings, Mr. Macklin was ordered to St. Elizabeths
Hospital for inpatient examination and treatment. Eventually, the trial court
determined in September 2019 that Mr. Macklin was incompetent and unlikely to
regain competence. That determination required that Mr. Macklin be either released
or civilly committed. Jackson v. Indiana, 406 U.S. 715, 738 (1972); D.C. Code
§ 24-531.06(c)(4).
The District of Columbia indicated that it intended to file a petition to have
Mr. Macklin civilly committed, and the trial court ordered Mr. Macklin held for
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further treatment pending the filing of that petition. D.C. Code § 24-531.06(c)(4).
The District of Columbia filed a petition for civil commitment, alleging that Mr.
Macklin had been diagnosed with paranoid schizophrenia and was likely to injure
himself or others if not civilly committed. The trial court initially ordered that Mr.
Macklin receive inpatient treatment until the entry of a final order in the civil-
commitment case. D.C. Code § 24-531.07(a)(2).
In March 2020, the Commission on Mental Health held a hearing in the civil-
commitment case. At the hearing, the District of Columbia introduced evidence that
Mr. Macklin’s paranoid schizophrenia would likely lead to acts of aggression if Mr.
Macklin were not civilly committed. The Commission issued a written order finding
that Mr. Macklin was likely to injure himself if not committed and recommending
inpatient commitment for one year. The Commission’s order did not make a finding
about the likelihood that Mr. Macklin would injure others if he was not civilly
committed. The Commission’s order also did not make an explicit finding as to
whether inpatient commitment was the least restrictive alternative, although it noted
testimony to that effect.
Proceedings in the civil-commitment case were delayed by the COVID-19
pandemic. In November 2020, the trial judge in the criminal case ordered that Mr.
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Macklin be released in that case but detained pending a hearing on the civil-
commitment petition. Mr. Macklin subsequently moved for release in the civil-
commitment case, arguing that he could be detained in that case only until the date
of the Commission hearing, which had already occurred. D.C. Code
§ 24-531.07(c)(1) (if trial court orders release in criminal case of defendant who has
been committed to an inpatient treatment facility, “inpatient treatment facility may
detain the person pending” Commission’s hearing on civil-commitment petition).
The trial court initially denied Mr. Macklin’s motion, concluding that Mr. Macklin
could be held under D.C. Code § 21-526(d)(1) (if Commission finds that person is
mentally ill, person is likely to self-injure or injure others if not committed, and
inpatient treatment is least restrictive alternative to prevent such injury, “detention
for emergency observation and diagnosis may be continued” pending conclusion of
civil-commitment proceeding). Mr. Macklin filed a motion to reconsider, arguing
that § 21-526(d)(1) did not apply because Mr. Macklin had never been detained for
“emergency observation and diagnosis” in the first place. The trial court granted
reconsideration and ordered Mr. Macklin’s release in the civil-commitment case.
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II. Mootness
In this appeal, the District of Columbia challenges the trial court’s order
releasing Mr. Macklin from inpatient treatment while the civil-commitment
proceeding was pending. After this appeal was taken, the trial court entered a final
order in the civil-commitment case, finding that Mr. Macklin was mentally ill and
was likely to injure himself or others if not committed. The trial court ordered Mr.
Macklin to undergo outpatient treatment for a year.
The parties agree that the final order in this case renders the current appeal
moot. Both parties argue that this court should nevertheless decide the appeal,
because the appeal presents an important and recurring issue of law and because the
issue would otherwise tend to evade review. See, e.g., In re Barlow, 634 A.2d 1246,
1249-50 (D.C. 1993) (deciding appeal that was technically moot, because of “short
duration” of challenged action and because appeal involved “overarching issues
important to the resolution of an entire class of future cases”) (brackets and internal
quotation marks omitted). We agree with the parties, and we therefore resolve the
appeal on the merits.
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III. Statutory Framework
A. Involuntary Civil Commitment under the Ervin Act
Involuntary civil-commitment proceedings are initiated by filing a petition
with the Commission on Mental Health alleging that a person is mentally ill and
therefore likely to self-injure or injure others if not committed. D.C. Code
§ 21-541(a)(1). The petition must be supported by a certificate to that effect from a
physician or qualified psychologist. Id. After such a petition is filed, the
Commission must promptly examine the person and hold a prompt hearing. D.C.
Code § 21-542(a). The Commission then must promptly report to the trial court its
conclusion as to whether the person is mentally ill and therefore likely to self-injure
or injure others if not committed. D.C. Code § 21-544. The trial court thereafter
must promptly hold a hearing or, if requested, a trial. D.C. Code § 21-545. If the
person is not found to be both mentally ill and therefore likely to self-injure or injure
others, the civil-commitment petition must be dismissed. D.C. Code § 21-545(b)(1).
If the person is found to be mentally ill and therefore likely to self-injure or injure
others if not committed, the court may order the person committed for a period of a
year. D.C. Code § 21-545(b)(2). Such commitment can include hospitalization if
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the court concludes that hospitalization “is the least restrictive alternative consistent
with the best interests of the person and the public.” Id.B. Emergency Involuntary Hospitalization under the Ervin Act
If there is reason to believe that immediate detention is necessary to prevent a
mentally ill person from self-injury or injury to others, the person may be taken into
custody without a warrant and transported to a hospital, and an application can be
made to have the person admitted for “emergency observation and diagnosis.” D.C.
Code § 21-521. Such an application triggers a series of procedural protections. The
hospital may admit the person as an inpatient only if a qualified person at the hospital
concludes that the person is likely to self-injure or injure others unless immediately
detained and that hospitalization is the least restrictive means of preventing such
injury. D.C. Code § 21-522(a). The hospitalization may not last more than forty-
eight hours unless the hospital files a petition with the court seeking an order to
extend the hospitalization for a period of no more than seven days. D.C. Code
§ 21-523. Within twenty-four hours of receiving such a petition, the court must
either approve the request or order the hospitalized person’s release. D.C. Code
§ 21-524(a). In making that determination, the trial court must determine whether
“probable cause exists to believe that [the] person is likely to [self-injure or injure]
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others if not immediately detained.” In re Herman, 619 A.2d 958, 959 (D.C. 1993)
(en banc). If the hospitalized person requests a court hearing, the trial court must
hold a “full evidentiary hearing” within twenty-four hours of the request. In re
Herman, 619 A.2d at 964; D.C. Code § 21-525. At that hearing, the hospitalized
person may contest the correctness of the trial court’s determination under § 21-524.
In re Herman, 619 A.2d at 964. If the trial court once again determines that there is
probable cause to believe that the hospitalized person is likely to self-injure or injure
others if not immediately detained, then the trial court may order that the person
“continue to be hospitalized for emergency observation and diagnosis.” Id. at 961.
The hospital also must examine the person within forty-eight hours of the trial
court’s order under § 21-524 and must immediately release the person if, then or at
any time thereafter, the hospital determines that the person “is no longer mentally ill
to the extent that the person is likely to [self-injure or injure] others if not presently
detained.” D.C. Code § 21-527(a)(1), (a)(2), (b)(1).
The period for emergency hospitalization can be extended for up to twenty-
one days if a civil-commitment petition has been filed. D.C. Code § 21-526(c). If
the Commission holds a hearing on the civil-commitment petition and finds that
inpatient commitment is the least restrictive alternative to prevent self-injury or
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injury to others, the “detention for emergency observation and diagnosis may be
continued” pending the completion of the civil-commitment proceeding. D.C. Code
§ 21-526(d)(1). If the Commission finds that the person “is not mentally ill or if
mentally ill, is not mentally ill to the extent that he is likely to [self-injure or injure]
other persons if not committed, the Commission shall immediately order [the
person’s] release.” D.C. Code § 21-544.
C. Incompetent Criminal Defendants under the IDCCA
If the court finds that a criminal defendant is unlikely to regain competence,
the court can order inpatient treatment for up to thirty days pending the filing of
civil-commitment petition. D.C. Code § 24-531.06(c)(4). If a petition has been filed
within that period, the trial court has two options. First, the trial court can order that
inpatient treatment continue until a final order is issued in the civil-commitment
case. D.C. Code § 24-531.07(a)(2). Second, the trial court can order the defendant’s
release in the criminal case. D.C. Code § 24-531.07(c)(1). If the trial court chooses
the second option, the trial court must “remand the person to the inpatient treatment
facility and the inpatient treatment facility may detain the person pending a hearing
on the petition conducted pursuant to § 21-542.” Id. As a reminder, § 21-542
governs the hearing before the Commission on a civil-commitment petition. A
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defendant who has been detained under § 24-531.07(c)(1) has the right to demand a
“probable cause hearing on the person’s continued detention” “pursuant to
§ 21-525.” D.C. Code § 24-531.07(c)(2). Such a hearing is held in the Family
Court, which is the division of Superior Court that handles civil-commitment
matters. See Super. Ct. Fam. R. (introductory note); Super. Ct. Ment. Health R. 1.
The hearing must be held within twenty-four hours. D.C. Code § 24-531.07(c)(2).
IV. Analysis
We decide issues of statutory interpretation de novo. Roberts v. United States,
216 A.3d 870, 876 (D.C. 2019). “We first look to see whether the statutory language
at issue is plain and admits of no more than one meaning.” Id. (internal quotation
marks omitted). “The meaning—or ambiguity—of certain words or phrases may
only become evident when placed in context. Therefore, we do not read statutory
words in isolation; the language of surrounding and related paragraphs may be
instrumental to understanding them.” Tippett v. Daly, 10 A.3d 1123, 1127 (D.C.
2010) (en banc) (citation and internal quotation marks omitted). “We consider not
only the bare meaning of the word but also its placement and purpose in the statutory
scheme. Statutory interpretation is a holistic endeavor.” Id. (citation, ellipsis, and
internal quotation marks omitted).
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“We will give effect to the plain meaning of a statute when the language is
unambiguous and does not produce an absurd result.” In re Z.M., 272 A.3d 1183,
1191 (D.C. 2022) (brackets and internal quotation marks omitted); see District of
Columbia v. Place, 892 A.2d 1108, 1111 (D.C. 2006) (“A court may refuse to adhere
strictly to the plain language of a statute in order to effectuate the legislative purpose
as determined by a reading of the legislative history or by an examination of the
statute as a whole.”) (brackets and internal quotation marks omitted). “When
interpreting statutes, we assume that the legislature acted logically and rationally and
we avoid interpretations of statutes which lead to implausible results.” Wade v.
United States, 173 A.3d 87, 95 (D.C. 2017) (internal quotation marks omitted).
“[W]e consider statutory context and structure, evident legislative purpose,
and the potential consequences of adopting a given interpretation.” In re G.D.L.,
223 A.3d 100, 104 (D.C. 2020). “We may also look to the legislative history to
ensure that our interpretation is consistent with legislative intent.” Facebook, Inc.
v. Wint, 199 A.3d 625, 628 (D.C. 2019) (brackets and internal quotation marks
omitted).
Applying these principles, we conclude that a defendant who has been found
unlikely to regain competence and who has been released in the criminal case can
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properly be detained pursuant to D.C. Code § 21-526(d) pending completion of the
civil-commitment process. We acknowledge that Mr. Macklin’s argument to the
contrary finds considerable support in the wording of § 21-526(d). In sum, Mr.
Macklin appears to argue the following: (1) § 21-526(d) authorizes “continued”
“detention for emergency observation and diagnosis”; (2) detention for “emergency
observation and diagnosis” occurs in the context of emergency hospitalization, e.g.,
D.C. Code § 21-521; (3) the District of Columbia never sought to have Mr. Macklin
hospitalized on an emergency basis; and thus (4) there was no detention for
“emergency observation and diagnosis” to be continued. Rather, Mr. Macklin
contends, continued detention under § 21-526(d) of a criminal defendant found
unlikely to regain competence and released in the criminal case is permissible only
if a petition for emergency hospitalization has been filed.
If the analysis were properly focused only on these provisions, Mr. Macklin’s
argument would seem quite persuasive. Mr. Macklin’s argument finds further
support from the principle that this court will “construe[] the [Ervin] Act narrowly
when its application may result in the curtailment of any person’s liberty.” In re
Walker, 856 A.2d 579, 588 (D.C. 2004) (internal quotation marks omitted). As we
have explained, however, statutory interpretation is a holistic task, and we must also
consider the language and structure of other provisions in the Ervin Act and the
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IDCCA. In our view, this broader inquiry weighs heavily against Mr. Macklin’s
argument, for several reasons.
A. Continued Detention pursuant to D.C. Code § 21-525One important countervailing consideration is that other provisions of the
Ervin Act and the IDCCA seem to contradict Mr. Macklin’s theory. A defendant
who has been found unlikely to regain competence and who has been detained
pending a Commission hearing on a petition for civil commitment has the right to
demand a prompt “probable cause hearing on the person’s continued detention,”
“pursuant to § 21-525.” D.C. Code § 24-531.07(c)(2). The purpose of a hearing
held under § 21-525 is to determine whether the trial court’s earlier ruling under
§ 21-524 was correct. In re Herman, 619 A.2d at 964. The issue for the trial court
under § 21-524 is whether to grant “a petition for hospitalization of a person for
emergency observation and diagnosis.” D.C. Code § 21-524(a).
Under the logic of Mr. Macklin’s argument, a trial court seemingly could not
order “continued detention” under § 24-531.07(c)(2) unless the District of Columbia
had already filed a petition for emergency involuntary hospitalization before the trial
court rules. That is because § 24-531.07(c)(2) permits detention pursuant to § 21-
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525, which in turn is directed at determining whether it was correct to grant “a
petition for hospitalization of a person for emergency observation and diagnosis.” If
no such petition has been filed, then—on Mr. Macklin’s theory—the trial court
apparently would have no basis under § 24-531.07 to grant continued detention
under § 21-525.
To the contrary, we think it clear that § 24-531.07(c)(2) was intended to grant
the trial court authority to order continued detention without regard to whether the
District of Columbia had already filed a petition for emergency involuntary
hospitalization. Section 24-531.07(c)(2) is not limited by its terms to instances in
which such a petition has already been filed. Rather, it authorizes a hearing, upon
prompt request, any time a defendant has been remanded to an inpatient facility
under § 24-531.07(c)(1). Moreover, as we have explained, to order continued
detention under § 24-531.07(c)(2) the trial court must find that there is probable
cause to believe that the defendant is likely to self-injure or injure others if not
immediately detained. That is precisely the finding that authorizes continued
detention of persons who have been involuntarily hospitalized on an emergency
basis. In re Herman, 619 A.2d at 959.
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Limiting the trial court’s authority to order continued detention under
§ 24-531.07(c)(2) to cases in which a petition for emergency involuntary
hospitalization has already been filed would lead to consequences that we view as
unreasonable to the point of absurdity. The first issue is one of conflicting timelines.
Emergency involuntary hospitalization begins with an application to have a person
admitted to a hospital for purposes of emergency observation and diagnosis. D.C.
Code § 21-521. If the person is admitted, the hospital has forty-eight hours to file a
petition asking for continued detention for up to seven days. D.C. Code § 21-523.
The court is then required to rule on that petition with twenty-four hours of receipt.
D.C. Code § 21-524. If the person requests a hearing to challenge that ruling, the
trial court is then required to hold a hearing with twenty-four hours. D.C. Code
§ 21-525.
That timeline, though compressed, is incompatible with the stricter deadline
set by § 24-531.07(c)(2). That provision requires the trial court to hold a full
evidentiary hearing pursuant to § 21-525 within twenty-four hours of a request,
which request can be made immediately once the defendant is remanded to the
hospital under § 24-531.07(c)(1). Thus, unless the District of Columbia happened
to begin the process of emergency involuntary hospitalization some days before the
trial court even released the defendant in the criminal case, § 24-531.07(c)(2) in Mr.
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Macklin’s view might require the trial court to hold a full evidentiary hearing to
determine the correctness of a ruling that the trial court would not yet have made
about whether to grant a petition for involuntary emergency hospitalization that the
trial court had not yet even received.
The problem is not limited to timing conflicts. On Mr. Macklin’s theory, the
trial court apparently would have to hold two separate, substantively identical “full
evidentiary hearings” on whether there was probable cause to believe that the
defendant was likely to self-injure or injure others if not immediately detained, one
hearing under § 24-531.07(c)(2) and one hearing under § 21-525. Depending on the
timing of events, those two hearings might occur quite closely in time. We think it
entirely implausible that the D.C. Council intended so unreasonable a result. Cf.,
e.g., McWatt v. Mattax, No. 03-13-00332-CV, 2015 WL 1285793, at *5 (Tex. App.
Mar. 18, 2015) (stating that it would be absurd to construe statute to require
duplicative hearings).
We draw two conclusions from the foregoing discussion. First, the IDCCA
does not contemplate that the continued detention of defendants remanded to an
inpatient facility under § 24-531.07(c) would turn on whether the process of
emergency involuntary hospitalization has been started from the beginning. Rather,
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the IDCCA authorizes continued detention of such defendants if the trial court has
held an evidentiary hearing under § 24-531.07(c)(2) and has determined that there is
probable cause to believe that the defendant was likely to self-injure or injure others
if not immediately detained.
Second, there is an apparent drafting error in the way in which the IDCCA
interacts with the Ervin Act. Although § 24-531.07(c)(2) contemplates continued
detention of defendants remanded to an inpatient facility, without a need for the
filing of a petition for emergency involuntary hospitalization, § 24-531.07(c)(2) does
so by cross-reference to provisions—§ 21-524 and § 21-525—that by their terms
seem to presuppose prior detention for emergency observation and diagnosis. For
the reasons already stated (and other reasons we discuss infra), we conclude that this
apparent drafting error does not require us to ignore the clear intent of the relevant
provisions or to adopt an absurd construction of the interaction between the IDCCA
and the Ervin Act. See, e.g., Chickasaw Nation v. United States, 534 U.S. 84, 91
(2001) (“[C]ommon sense suggests that the cross-reference is simply a drafting
mistake.”). We do not have a general authority to “rescue [the legislature] from its
drafting errors, and to provide for what we might think is the preferred result.”
Lamia v. U.S. Tr., 540 U.S. 526, 542 (2004) (ellipsis and internal quotation marks
omitted). We do, however, have the authority, in extraordinary circumstances, to
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disregard “obvious technical drafting errors.” Niz-Chavez v. Garland, 141 S. Ct.
1747, 1480 n.1 (2021). We conclude that the present case is an appropriate occasion
to exercise that authority. Cf. Gilmore v. United States, 699 A.2d 1130, 1132-33
(D.C. 1997) (construing “subsection” to mean “section,” thereby correcting “clerical
error” in order to avoid absurdity and give effect to legislature’s obvious intent).
The foregoing discussion has focused on the consequences of the hearing held
under § 24-531.07(c)(2). No such hearing was held in the present case, because Mr.
Macklin choose not to avail himself of that procedural protection. The issue in the
present case is whether a defendant remanded to an inpatient facility under
§ 24-531.07(c)(1) can be held in the facility pending the resolution of civil-
commitment proceedings on the basis of a finding by the Commission that inpatient
commitment is the least restrictive alternative to prevent self-injury or injury to
others. D.C. Code § 21-526(d). Essentially for the reasons already outlined, we
conclude that it would be absurd to require the release of such a defendant unless a
parallel process of emergency involuntary hospitalization had been initiated. It is
true that § 21-526(d) by its terms presupposes prior detention for emergency
observation and diagnosis. As we have already explained, however, we conclude
that this presupposition reflects a drafting error that can and should appropriately be
disregarded in order to avoid absurdity and give effect to clear legislative intent.
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B. Other Structural Considerations
Several other structural considerations support the conclusion that defendants
who have been remanded to an inpatient facility under § 24-531.07(c)(1) can be
detained pending completion of civil-commitment proceedings if the Commission
finds that inpatient commitment is the least restrictive alternative to prevent self-
injury or injury to others.
First, as previously noted, the trial court in the criminal case has two options
after finding that a criminal defendant is unlikely to regain competence: to direct that
inpatient treatment continue until a final order is issued in the civil-commitment
proceeding, D.C. Code § 24-531.07(a)(2); or to remand the defendant to an inpatient
facility pending the Committee hearing, D.C. Code § 24-531.07(c)(1). If the trial
court picks the first option, the defendant is detained without receiving any of the
procedural protections afforded to persons who are involuntarily hospitalized. (We
note that Mr. Macklin has suggested that D.C. Code § 24-531.07(a)(2) may be
unconstitutional; that issue is not before us and we express no opinion on the issue.)
It would be quite strange if the second option were the diametric opposite:
defendants who are remanded under § 24-531.07(c)(1) must be given not only all of
the protections given to persons who are subject to emergency involuntary
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hospitalization but also the additional specific protection provided in § 24-531.07(c).
It is in our view far more reasonable to understand the second option, as we do, to
provide some but not all of the protections given to those who are involuntarily
hospitalized on an emergency basis.
Second, the IDCCA in one respect clearly does not provide defendants
remanded under § 24-531.07(c) with all of the procedural protections provided to
persons who are involuntarily hospitalized on an emergency basis. Specifically, the
IDCCA permits such defendants to be held inpatient, without any further findings or
procedural protections, at least until a Commission hearing is held. D.C. Code
§ 24-531.07(c)(1). That detention could last for some time, because there is no
specific time line for holding that hearing, which instead must simply be held
“promptly.” D.C. Code § 21-542(a). It would be anomalous to permit detention
without such protections for that period of time but then permit further detention
only if defendants are given all of the protections provided to persons who are
involuntarily hospitalized on an emergency basis, starting from the beginning with
an application to be admitted to a hospital. It would be particularly anomalous to
terminate the authority for detention at the point where the Commission makes a
finding that supports continued detention, not release: that inpatient commitment is
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the least restrictive alternative to prevent self-injury or injury to others. D.C. Code
§ 21-526(d).
Finally, if the D.C. Council had intended that defendants remanded to an
inpatient facility under § 24-531.07(c)(1) be provided with all of the protections
afforded to those who are subject to emergency involuntary hospitalization, one
would think the Council would have stated that directly, rather than leaving that
conclusion to be divined from the presuppositions of provisions buried several cross-
references in. Cf., e.g., AMG Cap. Mgmt., LLC v. Fed. Trade Comm’n, 141 S. Ct.
1341, 1349 (2021) (“Congress does not hide elephants in mouseholes.”) (ellipses
and internal quotation marks omitted).
C. Legislative History
The legislative history of the bill that became the IDCCA does not appear to
shed direct light on the issue before us. See Incompetent Defendants Criminal
Commitment Act of 2004, D.C. Council, Report on Bill 15-967 (Nov. 17, 2004). We
do note, however, that there is no mention in the Committee Report on that bill of
the idea that emergency involuntary hospitalization would be necessary to permit
22
continued detention of defendants remanded under § 24-531.07(c)(1) to an inpatient
facility pending a Commission hearing.
A year before the IDCCA was enacted, the D.C. Council enacted the
Prevention of Premature Release of Mentally Incompetent Defendants Amendment
Act of 2004. That Act contained a provision with language that is very similar to
that of § 24-531.07(c). See D.C. Code § 24-501(a-1)(1) (2004 Supp.; repealed by
D.C. Law 15-358, § 201(b) (52 D.C. Reg. 2015 (June 10, 2005))) (“[I]f . . . the court
further determines that the person shall be released from further detention in the
criminal . . . proceeding, the court shall remand the person to the hospital and the
hospital may detain the person pending a hearing on the petition conducted pursuant
to D.C. Official Code § 21-542.”). The Committee Report for that bill also contains
no mention of the idea that emergency involuntary hospitalization would be
necessary to permit continued detention of defendants remanded to an inpatient
facility pending a Commission hearing. Prevention of Premature Release of
Mentally Incompetent Defendants Amendment Act of 2004, D.C. Council, Report on
Bill 15-665 (July 8, 2004). The Report states that the bill was intended to “address
a gap within the District’s adult competency statute that could result in the release
of a criminal defendant who has been found mentally incompetent to stand trial and
ordered to be released from detention, but who may pose an imminent danger.” Id.
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at 1. The Report further stated that the bill “resolve[d] any ambiguity in the law and
strengthen[ed] the District’s ability to detain a mentally incompetent criminal
defendant until a civil commitment proceeding can be concluded thereby protecting
the public at large.” Id. at 4.
Those general statements do not directly address the issue before us, but in
our view they tend to undermine rather than support the idea that emergency
involuntary hospitalization would be necessary to permit continued detention of
defendants who are remanded to an inpatient facility under D.C. Code
§ 24-531.07(c)(1).
D. Adequate Protection of Liberty Interests
Mr. Macklin argues that important liberty interests will be inadequately
protected if defendants remanded to an inpatient facility pursuant to
§ 24-531.07(c)(1) can be detained based on the Commission’s finding that inpatient
commitment is the least restrictive alternative to prevent self-injury or injury to
others. D.C. Code § 21-526(d). We disagree. The protections afforded to such
defendants, though not precisely the same as those afforded to persons detained
solely on the basis of emergency involuntary hospitalization, are ample.
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First, defendants remanded to an inpatient facility pursuant to
§ 24-531.07(c)(1) have the right to a judicial determination, after a full evidentiary
hearing held within twenty-fours of the request, as to whether there is probable cause
they are “likely to injure [themselves] or others if not immediately detained.” In re
Herman, 619 A.2d at 959; D.C. Code § 24-531.07(c)(2); D.C. Code §§ 21-524 and
-525. That finding is the proper “focus” of the judicial inquiry into the lawfulness
of emergency involuntary hospitalization. In re Herman, 619 A.2d at 959. It is true
that such defendants will not receive some of the antecedent protections provided to
those who are being involuntarily hospitalized on an emergency basis, such as an
examination by hospital officials before admission to the hospital. D.C. Code
§ 21-522. It is also true, however, that such defendants are not being seized without
a warrant and brought to a hospital without prior judicial approval. Rather, they
have been remanded to the hospital by a judge after a finding that they are not likely
to regain competence. Moreover, a petition for civil commitment will already have
been filed as to such defendants, and that petition would have to be supported by a
certificate from a physician or qualified psychologist opining that the person is
mentally ill and therefore likely to self-injure or injure others if not committed. D.C.
Code §§ 21-541(a)(1), 24-531.07(c)(1).
25
Second, even if a defendant remanded to an inpatient facility under
§ 24-531.07(c)(1) chooses for some reason not to request a prompt judicial hearing,
inpatient commitment without any further finding can continue only to the point of
the Commission hearing. D.C. Code § 24-531.07(c)(1). At that point, inpatient
commitment may continue only if the Commission finds that inpatient commitment
is the least restrictive alternative to prevent self-injury or injury to others. D.C. Code
§ 21-526(d). It is true that the Commission is not required to make an explicit
finding about the immediacy of the danger. At least arguably, however, some
component of immediacy is reflected in the requirement that inpatient commitment
is the least restrictive alternative. Moreover, a defendant who wishes to contest an
issue of immediacy has the option of doing so by promptly requesting a judicial
determination of the issue.
Finally, we note that Mr. Macklin may overstate the protection provided under
the approach he advocates. Consider the following scenario: (1) a defendant is
remanded to an inpatient facility, pursuant to § 24-531.07(c)(1); (2) the defendant is
kept in that facility up to the date of the Commission hearing, pursuant to the same
provision; (3) on the day of the hearing, the defendant is admitted to a hospital for
emergency observation and diagnosis, pursuant to D.C. Code § 21-522; and (4) the
Commission then finds that inpatient commitment is the least restrictive alternative
26
to prevent injury to self or others, pursuant to D.C. Code § 21-526(d). Under the
plain language of § 21-526(d), the Commission can then order the “continued”
“detention for emergency observation and diagnosis” until the completion of the
civil-commitment process. That appears to be true even if no petition for continued
emergency involuntary hospitalization has yet been filed with the court pursuant to
D.C. Code § 21-523.
E. Response to the Dissent
Our reasoning differs from that of the dissent in two principal respects. First,
we disagree with the dissent’s interpretation of the plain language of D.C. Code
§ 24-531.07(c)(2) and D.C. Code §§ 21-524 and -525. As we explain more fully
supra at 13-17, § 24-531.07(c)(2) provides for a hearing to determine whether a
defendant’s detention can be “continued . . . pursuant to § 21-525.” Section 21-525
provides for a hearing to determine whether the trial court’s earlier ruling under
§ 21-524 was correct. In re Herman, 619 A.2d at 964. The issue for the trial court
under § 21-524 is whether to grant “a petition for hospitalization of a person for
emergency observation and diagnosis.” D.C. Code § 21-524(a). Under the logic of
Mr. Macklin’s view (and that of the dissent), the plain language of the Ervin Act
would therefore preclude a trial judge from ordering any detention whatsoever under
27
§ 24-531.07(c)(2) unless a defendant had already been hospitalized on an emergency
basis, because in the absence of such emergency hospitalization there is no basis for
“emergency observation and diagnosis.” In our view, the dissent’s contrary analysis
does not adequately address the plain language of the provisions. The dissent takes
the view that the words “pursuant to § 21-525” in § 24-531.07(c)(2) do not actually
mean that the requirements of § 21-525 (which in turn refer to the requirements of
§ 21-524) have to be met in order for a defendant to be detained. Post at 49-50. We
see no adequate basis for that view, which seems contrary to the plain language of
the provisions.
Second, the dissent expresses uncertainty about the precise nature of our
holding. Post at 55-56. To summarize, for the reasons we have stated, we construe
the IDCCA and the Ervin Act to permit the continued detention of defendants who
have been found unlikely to regain competence and who have been detained under
D.C. Code § 24-531.07(c)(1), even if the defendant has not been hospitalized on an
emergency basis, as long as the requisite findings under D.C. Code
§ 24-531.07(c)(2) (and thus D.C. Code §§ 21-524 and -525) or D.C. Code
§ 21-526(d) have been made. Specifically, although some language in those
provisions considered in isolation indicates that such detention would be permissible
only if the defendant had already been hospitalized on an emergency basis, we
28
conclude that the drafters of the IDCCA overlooked that language and that it would
be absurd to treat that language as precluding continued detention.
F. Conclusion
In sum, we hold that defendants remanded to an inpatient facility pursuant to
§ 24-531.07(c)(1) can be detained pending the completion of civil-commitment
proceedings if the Commission finds that inpatient commitment is the least
restrictive alternative to prevent self-injury or injury to others. D.C. Code
§§ 21-542, -526(d). We note that the Commission in this case did not make an
explicit finding that inpatient commitment was the least restrictive alternative. Mr.
Macklin has not raised that issue in this appeal, however. For that reason, and
because the order at issue in this case no longer has any practical effect, we do not
reach the issue.
For the foregoing reasons, we reverse the judgment of the Superior Court.
So ordered.
29
EASTERLY, Associate Judge, dissenting in part: Wendell Macklin, charged
with two misdemeanors, was detained pretrial after he missed several hearings in his
criminal case. The temporary detention to ensure his appearance for his criminal
trial morphed and extended when his counsel raised competency concerns and Mr.
Macklin was sent to St. Elizabeths Hospital. 1 Eventually, the criminal court
determined, pursuant to Jackson v. Indiana, 406 U.S. 715, 738 (1972), that Mr.
Macklin was incompetent to stand trial for the foreseeable future and thus could no
longer be held as a pretrial detainee; i.e., he was “Jackson’ed.”
Thereafter, the District filed a petition to civilly commit Mr. Macklin via the
standard process laid out in subchapter IV of the Ervin Act. Ordinarily, an individual
subject to a civil commitment petition remains at liberty until the family court
decides that civil commitment is warranted—unless separate emergency
hospitalization procedures are pursued under subchapter III of the Ervin Act and a
showing is made that an individual is mentally ill and due to that illness presents an
immediate danger to themselves or others if not detained. The District never sought
1
Competence is an individual’s “present ability to consult with [their] lawyer
with a reasonable degree of rational understanding” and their “rational, as well as
. . . factual, understanding of the proceedings against [them].” D.C. Code
§ 24-531.01(1).
30
to make such a showing as to Mr. Macklin or request his emergency hospitalization
under subchapter III.
The Incompetent Defendants Criminal Commitment Act (“IDCCA”) provides
a separate framework for immediate, temporary involuntary hospitalization: it
allows a Jackson’ed defendant to be held either by the criminal court until the family
court’s ruling on civil commitment—or, if the criminal court orders the release of
the individual from its custody and remands the individual to an inpatient treatment
facility, by that facility “pending” a hearing before the Commission on Mental
Health regarding the civil commitment petition, which results in a nonactionable
recommendation. See D.C. Code § 24-531.07(c)(1). By the time the criminal court
relinquished Mr. Macklin from its custody and remanded him to St. Elizabeths,
however, he had already had his Commission hearing on the District’s civil
commitment petition. Thus, as the District acknowledges in its brief to this court,
any authority under the IDCCA to hold Mr. Macklin had expired.
At this point, Mr. Macklin continued to be held seemingly without authority.
When he challenged his involuntary hospitalization, the District contended that, once
the authority to hold him under the IDCCA ended, he could be held under the
emergency hospitalization provisions of subchapter III of the Ervin Act, specifically
31
§ 21-526(d)(1), even though the District had not initiated emergency hospitalization
procedures and no determination had been made that he posed an immediate danger
if not detained. The family court correctly rejected this argument and we should
affirm its ruling. 2
Subsection 21-526(d)(1) authorizes “continued” “detention for emergency
observation and diagnosis . . . [p]ending the conclusion of judicial [commitment]
proceedings.” It plainly does not apply to Mr. Macklin because he was not detained
“for emergency observation and diagnosis” under subchapter III of the Ervin Act to
begin with. Rather, Mr. Macklin was held under a completely different statute that
makes no mention of § 21-526(d)(1): the IDCCA. Under § 24-531.07(c)(1) of the
IDCCA, Jackson’ed defendants like Mr. Macklin, who are the subject of a civil
commitment petition and released from criminal court custody, may be held only
“pending” a Commission hearing—an interim step in, not the conclusion of, a civil
commitment proceeding. Subsection 24-531.07(c)(2) further limits detention
authority under § 24-531.07(c)(1) by giving people like Mr. Macklin the right to
seek their release via a probable cause hearing even before a Commission hearing
takes place. It confers this right by referencing subchapter III of the Ervin Act,
I concur with my colleagues in the majority in concluding that we should not
2
dismiss this case as moot and instead resolve it on the merits. See ante Part II.
32
§ 21-525. But the whole of § 21-525, which affords such probable cause hearings
specifically to emergency detainees under a different timetable, does not apply to
Jackson’ed detainees so as to constrain the right to a probable cause hearing that
§ 24-531.07(c)(2) confers; nor does it logically compel treating Jackson’ed
defendants like Mr. Macklin as emergency detainees.
Sections 21-526(d) and 24-531.07(c) have plain-language meanings that
support Mr. Macklin. But my colleagues in the majority decline to accept them. My
colleagues instead set forth a statutory scheme where a Jackson’ed defendant who
is released from criminal custody can be involuntarily hospitalized as if the
defendant were an emergency detainee until a court decides whether that defendant
should be civilly committed. Rather than articulate an affirmative analysis of the
statutes supporting their position, my colleagues focus on a perceived illogic in the
text of § 24-531.07(c)(2) that is in fact a product of their misinterpretation of the
plain language. They then discern a “drafting error” that they assert authorizes them
to effectively rewrite the Ervin Act and the IDCCA. They elide the distinction
between Jackson’ed defendants and emergency detainees and enlarge the District’s
detention authority in civil commitment proceedings. In so doing, they disregard the
Ervin Act’s animating objectives: to allow individuals who are subject to civil
commitment petitions to remain at liberty unless and until a court issues a final
33
commitment order; to strictly limit emergency hospitalization to those situations in
which an individual presents an immediate danger to themselves or others; and to
impose a comprehensive quilt of procedural protections to ensure these aims are met.
I would read §§ 21-526(d) and 24-531.07(c) as they are written and, if that
results in outcomes the legislature deems undesirable, allow the legislature to make
any fixes it deems necessary. Accordingly, I would affirm the family court’s
determination that, upon the expiration of detention authority under the IDCCA and
in the absence of the initiation of emergency hospitalization proceedings under
subchapter III of the Ervin Act, Mr. Macklin was entitled to release. I therefore
dissent.
I. A Plain-Language Reading of the Statutes 3
The Ervin Act and the IDCCA and are two separate statutory frameworks,
enacted at two different times. While they relate in limited ways, I cannot agree with
the majority opinion’s conclusion that the “clear intent” of these provisions, ante at
3
To aid the reader in this plain-language reading, I have reproduced the
relevant statutory provisions in Appendix A, Excerpts from Subchapter III of the
Ervin Act; Appendix B, Excerpts from Subchapter IV of the Ervin Act; and
Appendix C, Excerpts from the Incompetent Defendants Criminal Commitment Act.
34
17, is to authorize the detention of a Jackson’ed defendant like Mr. Macklin, who
has been released from criminal custody and has never been determined to be
immediately dangerous, as an emergency detainee. Ordinarily, “the intent of the
lawmaker is to be found in the language he [or she] has used.” Tippett v. Daly, 10
A.3d 1123, 1126 (D.C. 2010) (quoting Peoples Drug Stores, Inc. v. District of
Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc)). Here, the text of the Ervin
Act and the IDCCA—which my colleagues in the majority concede provides
“considerable support” for Mr. Macklin’s position, ante at 12—is clear and
controlling.
A. The Ervin Act
Enacted in 1965, the District of Columbia Hospitalization of the Mentally Ill
Act (the “Ervin Act”), D.C. Code § 21-501 et seq., provides for both involuntary
civil commitment and temporary emergency hospitalization when an individual may
be a danger to themself or others. It sets out “a comprehensive statutory scheme” to
balance two competing concerns: the constitutional rights of people with mental
illnesses, and public safety (recognizing that people with mental illnesses are
members of the public and may need protection from themselves). See In re
DeLoatch, 532 A.2d 1343, 1345 (D.C. 1987) (per curiam) (internal quotation marks
35
omitted). Thus, while the Act provides for the involuntary civil commitment of a
mentally ill individual in some circumstances, we have held that “the very core of
the Act is an explicit and expedited timetable” for determining whether commitment
is necessary, “at the conclusion of which the patient is either released or committed.”
In re Lomax, 386 A.2d 1185, 1188 (D.C. 1978) (en banc). More precisely, one might
say that the core of the Act is two interlocking “explicit and expedited” timetables.
One timetable, set forth in subchapter IV, §§ 21-541 to -551, applies when
determining whether a person may be involuntarily civilly committed (for no more
than a year at a time) because they are “mentally ill, and because of the illness[, are
at some point in the future] likely to injure [themselves] or other persons if not
committed.” D.C. Code § 21-541(a)(1); see also id. § 21-545(b)(2). The other
timetable, set forth in subchapter III, §§ 21-521 to -528, applies when determining
whether a person may be temporarily involuntarily hospitalized on an emergency
basis because there is “reason to believe that [the] person is mentally ill and, because
of the illness, is likely to injure [themselves] or others if . . . not immediately
detained.” Id. § 21-521 (emphasis added).
In the context of civil commitments governed by subchapter IV, the Mental
Health Commission makes recommendations about the need to commit an
individual, but those recommendations have no immediate effect. Only the family
36
court can make the final determination that civil commitment is needed and order
that individual be deprived of their liberty. See id. § 21-544 (directing the
Commission to report its recommendation to the family court); see also In re Reed,
571 A.2d 801, 803 n.6 (D.C. 1990) (acknowledging that, even if the Commission
recommends judicial commitment at the § 21-542 hearing, an “individual remains at
liberty during the course of the [judicial] proceedings”); In re Holmes, 422 A.2d 969,
971 (D.C. 1980) (“The purpose of Commission proceedings is not to adjudicate the
issue of commitment in a final manner.”). The only exception to this rule is if the
person is hospitalized on an emergency basis pursuant to subchapter III.
Subchapter III of the Ervin Act, titled “Emergency Hospitalization,”
authorizes the involuntary hospitalization of an individual before the family court
has issued a final civil commitment order in the case of “certified emergenc[ies].”
Lomax, 386 A.2d at 1188 n.13. Emergency hospitalization may be initiated only by
a subset of those individuals qualified to initiate civil commitment under subchapter
IV. Compare D.C. Code § 21-521 (listing officers of the Department of Mental
Health, officers qualified to make arrests, or particular doctors), with id. § 21-541(a)
(adding spouses, parents, and legal guardians to the list). As the majority opinion
sets out, the initiation of emergency hospitalization “triggers a series of procedural
protections” that, precisely because of the immediate loss of liberty, involves
37
timetables stricter than those governing civil commitment proceedings under
subchapter IV. Ante at 7-9.
Subchapter III creates a limited exception to the default rule that an
“individual remains at liberty during the course of [judicial commitment]
proceedings,” Reed, 571 A.2d at 803 n.6, and it “evinces the intention of Congress
to permit emergency confinement for only short and precisely circumscribed
durations,” DeLoatch, 532 A.2d at 1345; see also In re Herman, 619 A.2d 958, 964-
66 (D.C. 1993) (expressing our concern “that provision for emergency
hospitalization can create a potential for erroneous commitments and unlawful
detention” and noting that emergency hospitalization under the Ervin Act is subject
to “strict time limits” that “provide a second tier of protections against extended
deprivations of liberty”); Lomax, 386 A.2d at 1188 (explaining that “[t]ime periods
from 24 to 48 hours are specified for emergency hospitalization, detention without
court order, and court review and determination of the need for further
hospitalization, which is in turn limited”).
B. The IDCCA and Detention of Incompetent Defendants
The other statutory scheme that allows the immediate detention of individuals
38
in the District who are believed to be mentally ill is the Incompetent Defendants
Criminal Commitment Act, D.C. Code § 24-531.01 et seq., which was enacted 40
years after the Ervin Act, in 2005. But the IDCCA was born of different concerns
and employs a different framework than the Ervin Act.
Under the Fifth and Fourteenth Amendments of the U.S. Constitution, an
individual deemed “incompetent” to stand trial may not be prosecuted. Hargraves
v. United States, 62 A.3d 107, 111 (D.C. 2013) (citing Medina v. California, 505
U.S. 437, 453 (1992)); see also U.S. Const. amends. V, XIV; D.C. Code
§ 24-531.02(a). As defined by the IDCCA, see supra note 1, competence has
nothing to do with dangerousness and thus has no direct relationship to the standards
for civil commitment or emergency hospitalization under subchapters III and IV of
the Ervin Act. In addition to the provisions of the IDCCA that set forth procedures
for determining whether an individual is competent and for restoring competency
where possible (during which time the individual may be in the community4), the
IDCCA also addresses the criminal and family courts’ authority to retain custody
over a defendant who has been found incompetent and unlikely to regain
4
See §§ 24-531.03 to .04 (allowing the criminal court to order inpatient or
outpatient evaluations); id. § 24-531.05 (allowing the criminal court to order
inpatient or outpatient “treatment for restoration of competency”).
39
competency in the foreseeable future—called a “Jackson” finding pursuant to the
Supreme Court’s decision in Jackson v. Indiana, 406 U.S. 715 (1972).
In Jackson, the Supreme Court held that there are due process limitations on
how long a criminal court may hold an incompetent defendant prior to trial while
waiting to see if the defendant will become competent, and that once a criminal court
makes a finding that someone will not become competent, “the State must either
institute the customary civil commitment proceeding that would be required to
commit . . . any . . . citizen, or release the[m].”5 Id. at 738. In line with this mandate,
the IDCCA acknowledges that releasing a defendant may be the appropriate
outcome after a Jackson finding. D.C. Code § 24-531.06(c)(4) (allowing for
release); id. § 24-531.07(a)(1) (requiring release if a civil commitment petition has
not been filed within the statutory timeframe). As the majority opinion describes, it
also includes a number of circumstances under which a Jackson’ed defendant may
continue to be held, either by the criminal court or an inpatient treatment facility,
pending evaluation of a defendant’s dangerousness for the purposes of civil
5
The Court also held that indefinitely institutionalizing an incompetent
criminal defendant using “a more lenient commitment standard” than that applied
“to all others [facing civil commitment but] not charged with [criminal] offenses”
violates the Equal Protection Clause. Jackson, 406 U.S. at 730.
40
commitment. See ante at 9-10.6
Here, the provision of the IDCCA of central interest is D.C. Code
§ 24-531.07(c). Subsection (c)(1) provides that, if the criminal court “orders the
release of a [Jackson’ed defendant] in the criminal case . . . and a petition for civil
commitment has been filed” under subchapter IV of the Ervin Act, then “the court
shall remand [that] person to the inpatient treatment facility” and that facility “may
detain the person pending a hearing [by the Mental Health Commission] on the
petition conducted pursuant to” subchapter IV. D.C. Code § 24-531.07(c)(1)
(emphasis added). If the person is detained under subsection (c)(1) pending a
hearing on their civil commitment petition, then they have a time-limited right
(within seven days of remand) under subsection (c)(2) to seek “a probable cause
hearing on [their] continued detention” in family court, “pursuant to § 21-525” of
subchapter III of the Ervin Act. Id. § 24-531.07(c)(2). By its plain text, subsection
(c)(2) imports the “probable cause” inquiry this court has held is required under
6
Among these circumstances, D.C. Code § 24-531.07(a)(2) permits criminal
courts to hold Jackson’ed defendants until the family court rules on their civil
commitment if such proceedings are pending. Mr. Macklin expresses skepticism
that this provision is consistent with the constitutional mandate of Jackson. I agree
that the majority opinion need not address that question in this case, but if it avoids
this question, it should not treat D.C. Code § 24-531.07(a)(2) as a foundation for its
analysis. But see ante at 19-20.
41
§ 21-525. See Herman, 619 A.2d at 959 (explaining that the hearing provided under
§ 21-525 is one to assess “the present mental condition of the person involved and
whether or not probable cause exists to believe that person is likely to injure himself
or herself or others if not immediately detained”); see also ante at 24 (stating that
“defendants remanded to an inpatient facility pursuant to § 24-531.07(c)(1) have the
right to a judicial determination” under the Herman standard). If the criminal court
operating under § 24-531.07(c)(2) concludes that the requisite probable cause does
not exist, then there is no longer any statutory authority for the Jackson’ed defendant
to be held pending their Commission hearing and they are restored their presumptive
right to liberty, enjoyed by any other person in civil commitment proceedings. See
Reed, 571 A.2d at 803 n.6. If the requisite probable cause is discerned—or if, as in
this case, a probable cause hearing under (c)(2) is never sought—a Jackson’ed
defendant may be held for the duration authorized under (c)(1), which is until the
Commission hearing.
C. Reading the IDCCA and Ervin Act Together, the Family Court Was
Correct
Under the plain-language reading of the IDCCA and the Ervin Act, the family
court was correct to order Mr. Macklin be released in the absence of any statutory
42
authority to involuntarily hospitalize him (1) under the Ervin Act as an emergency
detainee or (2) under the IDCCA after his Commission hearing.
Manifestly, neither the Ervin Act nor the IDCCA provides the District the
authority to detain a Jackson’ed defendant as an emergency detainee under D.C.
Code § 21-526(d)(1) or more generally under any other provision of subchapter III
of the Ervin Act. The Ervin Act, and subchapter III in particular, does not say
anything about Jackson’ed defendants—unsurprisingly, since this legislation was
enacted before the Supreme Court decided Jackson. And, although the IDCCA
confers some authority outside the Ervin Act to involuntarily hospitalize a
Jackson’ed defendant, that authority is limited and not tied to a defendant’s status
(or not) as an emergency detainee:
• A Jackson’ed defendant may be placed in extended inpatient treatment
by the criminal court for a limited time (30 days with the possibility of
a five-day extension) to permit the District to file a civil commitment
petition. D.C. Code § 24-531.07(a). If the District does not file such a
petition, the Jackson’ed defendant must be released from criminal
custody; they cannot be automatically held as an emergency detainee.
Id. § 24-531.07(a)(1).
43
• If the District files a civil commitment petition and the criminal court
retains custody of the defendant (but query under Jackson how long the
criminal court may lawfully do so, see supra note 5), the IDCCA
authorizes continued detention of a Jackson’ed defendant until a
judicial ruling on civil commitment, but the defendant is held under the
IDCCA, not as an emergency detainee. Id. § 24-531.07(a)(2).
• If the District files a civil commitment petition but the court determines
that continued criminal custody is not merited, the Jackson’ed
defendant is remanded for continued inpatient detention only “pending
[their Commission] hearing” (which should be held promptly, see id.
§ 21-542(a)), again not as an emergency detainee. Id.
§ 24-531.07(c)(1).
• And while that hearing is pending, the Jackson’ed defendant may
challenge their continued inpatient detention before the court,
prompting the same probable cause assessment to which emergency
detainees are entitled under § 21-525. Id. § 24-531.07(c)(2). That said,
the whole of § 21-525 does not apply to the Jackson’ed defendant. The
44
§ 21-525 allowance of a hearing upon request does not override and
defeat the seven-day limit under § 24-531.07(c)(2) to request a
§ 21-525-type probable cause hearing. Likewise, the requirement
under § 21-525 that the individual seeking a hearing be held pursuant
to § 21-524 does not override and defeat the express directive under
§ 24-531.07(c)(2) that a Jackson’ed defendant who has been released
from criminal custody and remanded to an inpatient treatment facility
pending a Commission hearing, by virtue of their status as such an
individual, is entitled to a § 21-525-type probable cause hearing. See
supra.
The bottom line is that the IDCCA confers authority to continue to hold a
Jackson’ed defendant under precisely defined procedural circumstances separate
and apart from subchapter III of the Ervin Act; it does not provide a shortcut to an
emergency hospitalization thereunder. And the IDCCA only allows involuntary
hospitalization of a Jackson’ed defendant who has been released from criminal
custody for a limited amount of time—at the outer boundary, up to the defendant’s
Commission hearing. Thereafter, like any other person in civil commitment
proceedings, an individual who was a Jackson’ed defendant is presumptively
permitted to be free in the community between the Commission hearing and the final
45
court order on their commitment. See Reed, 571 A.2d at 803 n.6. Thus, if the District
wishes to detain a former criminal defendant beyond this time on an emergency
basis, it must take the steps to initiate that process per subchapter III of the Ervin
Act. 7
My colleagues in the majority express concern that these two statutes operate
awkwardly together in certain scenarios or require less than my colleagues’ ideal
expenditure of resources. But the text of these statutes is plain, and their commands
are far from so absurd or unworkable that they require judicial revision. Cf. Reed,
571 A.2d at 803 n.6 (approving of a scheme wherein an involuntarily hospitalized
person is released but subject to the institution of additional detention proceedings);
see infra Section II.B (discussing the drafting-error doctrine). And if some other
process is preferable as a matter of policy, then it is within the Council’s exclusive
The majority opinion asserts that Mr. Macklin “may overstate the protection
7
provided under” his plain-language reading of the Ervin Act and the IDCCA, and
then provides a hypothetical in which the District takes steps to pursue emergency
detention of Jackson’ed defendant under subchapter III of the Ervin Act. Ante at 25-
26. Regardless of whether the District, having initiated emergency detention and
diagnosis under D.C. Code § 21-522, can seek continued detention under
§ 21-526(d) without complying with § 21-523—the hypothetical scenario
presented—the point here is that the District did not seek emergency hospitalization
of Mr. Macklin under subchapter III of the Ervin Act or ever obtain an assessment
that he presented an immediate danger to himself or others. Consequently, this
hypothetical offers little to detract from the merits of the plain-language reading in
this case.
46
purview to amend the statutes accordingly. Lamie v. United States Trustee, 540 U.S.
526, 542 (2004) (stating that, if the legislature “enacted into law something different
from what it intended, then it should amend the statute to conform it to its intent”;
“[i]t is beyond our province to rescue [the Council] from its drafting errors, and to
provide for what we might think is the preferred result” (ellipsis and internal
quotation marks omitted)).
Moreover, a plain-language reading of the IDCCA and the Ervin Act that
requires the District to initiate emergency detention procedures when it wishes to
treat a former criminal defendant as an emergency detainee respects the broader aims
of the Ervin Act to protect the rights of people with mental illnesses. 8 Reed, 571
A.2d at 802. This court is obligated to construe the Act’s provisions “narrowly, even
grudgingly,” given the “drastic curtailment” of a person’s liberty that may result
from its application. Lomax, 386 A.2d at 1187-88 (noting that the Act was “designed
with a view to securing at last the civil and constitutional rights” of “long-neglected”
people with mental illnesses, and that it aims to ensure that “no one [is] hospitalized
involuntarily for a prolonged period unless a judge or jury [finds] the patient to be
8
Although the majority opinion announces it will “look to the legislative
history” to aid its interpretation, ante at 11, it leaves out any consideration of the
legislative history of the Ervin Act.
47
both mentally ill and likely to injure [themselves] or others”); see also DeLoatch,
532 A.2d at 1345 (observing that the Ervin Act reflects a “profound congressional
concern for the liberties of [people with] mental[] ill[ness]” (internal quotation
marks omitted)). If anything, the enforcement of demanding procedural protections
is a desired feature of the Ervin Act, not an unwanted bug; this court has described
the “explicit and expedited” timetables of the statute as its “very core.” Lomax, 386
A.2d at 1188. We therefore should not be looking to expand the reach of the limited
detention authority the Act permits, absent clear statutory indication this was
intended.
II. The Majority Opinion’s Analysis
The majority opinion clearly disagrees with the conclusion I draw above, but
little else of its interpretive work is rendered with the same clarity. As a result, it is
difficult to discern the foundations for the majority opinion’s conclusion that Mr.
Macklin could be held under D.C. Code § 21-526(d) after the power to hold him
under D.C. Code § 24-531.07(c)(1) had expired. But it is clear my colleagues in the
majority do not rely on the plain text of these statutes.
48
A. Lack of Statutory Foundation
My colleagues in the majority conclude that Jackson’ed defendants like Mr.
Macklin, who have been released from criminal custody and remanded to inpatient
treatment, but can no longer be held under § 24-531.07(c) of the IDCCA, can
“properly be detained pursuant to . . . § 21-526(d)” of subchapter III of the Ervin
Act, ante at 11-12, which permits the extension of a person’s “detention for
emergency observation and diagnosis.” They do not attempt to reach this conclusion
by walking through the plain language. They could not, given that nothing in the
IDCCA incorporates § 21-526(d) into its operation, nor does any part of the IDCCA
contemplate “detention for emergency observation and diagnosis” under the Ervin
Act. The plain language notwithstanding, the majority opinion determines that it
would be absurd for the IDCCA not to allow continued detention of a Jackson’ed
defendant like Mr. Macklin under § 21-526(d).
The majority opinion’s perceived “absurdity” rests entirely on the reference
in § 24-531.07(c)(2) of the IDCCA to § 21-525 of the Ervin Act. Ante at 13-16. The
majority opinion asserts that, since § 24-531.07(c)(2) provides for a hearing
“pursuant to § 21-525,” under “the logic of Mr. Macklin’s argument” a criminal
court “could not order ‘continued detention’ under § 24-531.07(c)(2) unless the
49
District of Columbia had already filed a petition for emergency involuntary
hospitalization” per the Ervin Act. Ante at 13. It then argues that “[l]imiting the
trial court’s authority to order continued detention under § 24-531.07(c)(2) to cases
in which a petition for emergency involuntary hospitalization has already been filed
would lead to consequences that we view as unreasonable to the point of absurdity.”
Ante at 15. But the logical fallacy the majority opinion perceives is a product of its
own unreasonable interpretation of § 24-531.07(c)(2)’s reference to § 21-525.
The majority opinion reads § 24-531.07(c)(2)’s reference to § 21-525 as
imposing all the requirements of § 21-525 on a Jackson’ed defendant, in particular,
the requirement that the person requesting the hearing be one “whose continued
hospitalization is ordered under section 21-524,” i.e., someone who has already been
hospitalized on an emergency basis. That is an unreasonable reading of the text.
The reference to § 21-525 cannot import the entirety of that provision, given the
incompatibilities noted supra Section I.C, including § 21-525’s restrictions on who
gets a “probable cause hearing” (only emergency detainees). Instead, as explained
supra Sections I.B & C, the reference to a “probable cause hearing” under § 21-525
in § 24-531.07(c)(2) gives Jackson’ed defendants detained under (c)(1) (who are not
emergency detainees) a time-limited right to the same “probable cause” type inquiry
50
required under this court’s decision in Herman. 9 See 619 A.2d at 959. The plain
text compels this understanding. But even if the majority opinion disagrees that this
is the only way to read the language of (c)(2), at the very least the statutory language
can be reasonably read in this manner, and the existence of a reasonable
interpretation of the statute precludes any absurdity analysis. See Wright v. United
States, 315 A.2d 839, 841 (D.C. 1974) (stating that “absurdity is a result courts
should view with disfavor” unless “a statute fairly leaves no room for construction
to avoid such a result”). But see ante at 17-18.
The majority opinion’s perceived logical fallacy in the operation of
§ 24-531.07(c)(2) and § 21-525 is not only without basis, it is a distraction. Mr.
Macklin’s argument is that the District’s detention authority ended following his
Commission hearing under § 24-531.07(c)(1). He does not argue that interpreting
§ 24-531.07(c)(2) is necessary to his claims at all. Indeed, he never had a subsection
9
Later, the majority opinion asserts that the purpose of a subsection (c)(2)
hearing is “to determine whether a defendant’s detention can be ‘continued . . .
pursuant to § 21-525.’” Ante at 26. This is the closest the majority opinion gets to
a plain-language analysis, but it abridges what (c)(2) says. The “continued
detention” referenced under (c)(2) refers back to the detention authorized under
(c)(1). D.C. Code § 24-531.07(c)(2) (“Within 7 days of the remand order, a person
so detained [under (c)(1)] may request a probable cause hearing on the person’s
continued detention before the Family Court of the Superior Court of the District of
Columbia pursuant to § 21-525, in which case a hearing shall be held within 24 hours
after the receipt of the request.” (emphasis added)).
51
(c)(2) hearing during which a court could consider his “continued detention” under
(c)(1). Moreover, the District has never argued that it had the authority to continue
to detain Mr. Macklin under § 21-525, a fact not mentioned the majority opinion.
The District argued that, after the authority to detain Mr. Macklin under
§ 24-531.07(c)(1) expired, it could continue to involuntarily hospitalize him under
§ 21-526(d). The majority opinion makes no argument as to that statutory provision,
fallacious or otherwise; rather, it practically ignores it.
B. Misuse of the Drafting-Error Doctrine
Having derived a logical fallacy from a misreading of the plain text of
§ 24-531.07(c)(2), the majority opinion calls the implications of that fallacy
“absurd” and then declares it has discovered a “drafting error” in the IDCCA. Ante
at 18. 10
10
This too was not briefed by the parties. The government never argued that
there was a drafting error in either the Ervin Act or the IDCCA. In its initial brief
the government maintained that the plain text of the Ervin Act and the IDCCA
supported its continued detention of Mr. Macklin after his Commission hearing. In
its reply brief the government abandoned this argument and argued that these statutes
were ambiguous and reasonably interpreted to support Mr. Macklin’s continued
detention.
52
At the outset, I note that it is far from clear that it is appropriate to locate a
“drafting error” in one statutory scheme (the IDCCA) based on its assertedly
awkward relationship to an entirely separate statutory scheme (the Ervin Act),
enacted decades prior. The majority opinion cites no analogous examples. But such
inter-statutory interactions are predictably complex and imperfect, implicating
policy decisions best left to legislators. Even assuming that such a conclusion might
be appropriate in some circumstances, however, the majority offers no foundation
for its discernment of a drafting error in this case other than the apparently disfavored
outcomes the pertinent statutes yield as written. See ante at 17-18, see also id. at 27-
28. 11 This flies directly in the face of the drafting-error doctrine.
While courts on limited occasions and, in the majority’s words, “in
extraordinary circumstances,” ante at 17, take it upon themselves to step in where
there are clear errors introduced in the legislative drafting process, it is difficult to
11
The majority opinion appears to consider “continued detention” of
Jackson’ed defendants like Mr. Macklin—who have been released from criminal
custody and remanded to inpatient treatment under (c)(1), but may no longer be held
under that provision—to be the presumptive norm that must be rebutted. See, e.g.,
ante at 28 (explaining that language it identifies as problematic under its logical
fallacy argument, see supra, cannot reasonably be “treat[ed] . . . as precluding
continued detention.” (emphasis added)). But the presumptive norm is liberty, and
language to authorize the deprivation of liberty must be found within the operative
statutory language.
53
discern either the extraordinary circumstances or the clear error that would justify
the majority’s intervention. None of the potential “absurdities” that the majority
identifies—strict timetables, rigorous due process, a requirement of diligence on the
part of the District 12—compare remotely to the obvious errors that courts have
previously seen fit to correct. For example, this case is nothing like Gilmore v.
United States, 699 A.2d 1130 (D.C. 1997), cited by the majority opinion ante at 18,
where this court determined a definitional provision’s use of the word “subsection”
instead of “section” was an obvious “clerical error” that had the effect of making the
definitional provision apply only to itself, rendering it “pointlessly circular.” Id. at
1132; see also id. at 1132-33 (collecting cases including where, for example, there
was a manifest “scrivener’s error . . . made by someone unfamiliar with the law’s
object” (internal quotation marks omitted)). Chickasaw Nation v. United States, 534
U.S. 84 (2001), similarly lends no support to the majority opinion’s invocation of
this doctrine. In that case, the Supreme Court ignored one manifestly unrelated
statutory provision in a list of cross-referenced statutes because “common sense
12
Given that D.C. Code § 24-531.07(a) plainly places the burden on the
District to, as an initial matter, timely file a civil commitment petition in order to
continue to detain a Jackson’ed defendant, it is unclear why the majority opinion,
ante at 15-16, finds it so implausible that the statute would similarly require the
District to file an application for emergency hospitalization around the same time
should it wish from the outset to have greater detention authority over that defendant;
the District by necessity would already be aware of the defendant and their mental
condition.
54
suggest[ed]” its inclusion was a “drafting mistake.” Id. at 91.
Thus, in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), the Court explained
that this doctrine “applies only in exceptional circumstances to obvious technical
drafting errors,” which had no application in that case where the question was
whether Congress intended a statute to be as procedurally demanding as its plain text
indicated. Id. at 1480 n.1. Similarly in Lamie v. United States Trustee, 540 U.S.
526 (2004), the Supreme Court hewed to the plain language of the statute
notwithstanding the fact that it led to “a harsh outcome” and explained that its
“unwillingness to soften the import of Congress’ chosen words” was grounded in
“deference to the supremacy of the Legislature.” Id. at 538 (internal quotation marks
omitted). This court is likewise bound to defer to the statutory text as enacted by the
Council and should not second-guess its policy objectives.
C. Rewriting the Statutes
Having thus expanded the drafting-error doctrine, the majority opinion
announces that a Jackson’ed defendant who is released from criminal custody and
can no longer be held under D.C. Code § 24-531.07(c) of the IDCCA can be
involuntarily hospitalized as if they were an emergency detainee until a court decides
55
whether they should be civilly committed. But where exactly is the “error” in the
text that the majority purports to fix, and what exactly is the nature of that fix?
The majority opinion first puts forth that § 24-531.07(c)(2)’s “cross-reference
to provisions [] § 21-524 and § 21-525 [] that by their terms seem to presuppose
prior detention for emergency observation and diagnosis” is an “apparent drafting
error.” Ante at 17; see also id. at 27-28. Because § 24-531.07(c)(2) does not actually
refer to § 21-524, its reference to § 21-525 is left as the remaining possible error.
But if the majority aims to suggest that the Council meant to point to a different
statutory provision, it does not say so or identify the intended referent. And if the
majority’s solution is to excise the reference to § 21-525 from the IDCCA, then it
also excises the basis on which it concludes that a § 24-531.07(c)(2) hearing
provides the same protections as the provisions of the Ervin Act pertaining to
emergency hospitalization, ante at 24.
The majority opinion next points to the “presupposition” in § 21-526(d) of the
Ervin Act that a person must have been detained “for emergency observation and
diagnosis” before the District may extend their detention through the conclusion of
civil commitment proceedings, and concludes that this is “a drafting error that can
and should appropriately be disregarded.” Ante at 18; see also id. at 27-28. But the
56
majority opinion cannot possibly mean that, in enacting the IDCCA, the Council
wrote a “drafting error” into the Ervin Act enacted 40 years earlier, thereby
permitting this court to simply strike out language from § 21-526(d). And, as already
stated, the IDCCA makes no mention of § 21-526 that might be “disregarded.”
As a third alternative, the majority opinion implies that it was a “drafting
error” for the Council to provide in § 24-531.07(c)(1) for detention “pending a
hearing on the petition conducted pursuant to § 21-542” when it meant to write
“pending the completion of civil-commitment proceedings if the Commission finds
that inpatient commitment is the least restrictive alternative to prevent self-injury or
injury to others.” Ante at 28. But that difference is much more than a slip of the pen
or a transposition error that this court might justifiably correct. Accordingly, the
decision whether to make such an amendment should be reserved to the Council.
Ultimately, the majority opinion does not precisely identify the drafting error
it is correcting. It simply asserts that “the drafters of the IDCCA overlooked” how
all of the provisions discussed above interact. Ante at 28 (citing D.C. Code
§§ 21-524, -525, -526(d) & 24-531.07(c)(1)&(2)). And thus it becomes clear: the
majority opinion is not in fact correcting an identifiable textual error in the Ervin
Act or the IDCCA. It is simply rewriting the law.
57
* * *
The legislature, per § 24-531.07(c)(1) of the IDCCA, deemed it necessary to
authorize the continued detention of former criminal defendants who have been
Jackson’ed, released from criminal custody, and are the subject of civil commitment
petitions, for a limited period of time—“pending” their (“prompt[]”) Commission
hearing. Id., see also D.C. Code § 21-542(a). After this point, this group of former
criminal defendants is statutorily restored to the liberty that all other individuals
awaiting a final civil commitment order are presumed to enjoy unless a petition for
emergency hospitalization is filed. This is hardly absurd. Jackson’ed defendants
are not presumptively immediately dangerous, and, in the absence of a legitimate
basis to hold them after the conclusion of their criminal cases, their eventual release
is constitutionally demanded. In disregard of the plain language of the operative
statutes, my colleagues in the majority hold that Jackson’ed defendants who can no
longer be held under § 24-531.07(c)(1) of the IDCCA may be shunted into
subchapter III of the Ervin Act so as to authorize their continued hospitalization
under D.C. Code § 21-526(d) as emergency detainees (but without a determination
that they are immediately dangerous). I disagree that they have the authority to
effectively rewrite how the Ervin Act and the IDCCA should interact.
58
For these reasons, I respectfully dissent.
59
APPENDIX A:
Subchapter III of the Ervin Act, “Emergency Hospitalization” (excerpts)
§ 21-521. Detention of persons believed to be mentally ill; transportation and
application to hospital.
An accredited officer or agent of the Department of Mental Health of the
District of Columbia, or an officer authorized to make arrests in the District of
Columbia, or a physician or qualified psychologist of the person in question, who
has reason to believe that a person is mentally ill and, because of the illness, is likely
to injure himself or others if he is not immediately detained may, without a warrant,
take the person into custody, transport him to a public or private hospital, or to the
Department, and make application for his admission thereto for purposes of
emergency observation and diagnosis. . . .
§ 21-522. Examination and admission to hospital; notice.
(a) Subject to the provisions of section 21-523, the administrator of a private hospital
may, and the administrator of a public hospital or the chief clinical officer of the
Department or his designee shall, admit and detain for purposes of emergency
observation and diagnosis a person with respect to whom application is made under
section 21-521, if the application is accompanied by a certificate of a psychiatrist,
qualified physician, or qualified psychologist on duty at the hospital or the
Department stating that he or she:
(1) Has examined the person;
(2) Is of the opinion that the person has symptoms of a mental illness and,
because of the mental illness, is likely to injure himself or others unless the person
is immediately detained; and
(3) Is of the opinion that hospitalization is the least restrictive form of
treatment available to prevent the person from injuring himself or others.
...
60
§ 21-523. Court order requirement for hospital detention beyond 48 hours;
maximum period for observation.
A person admitted to a hospital or the Department under section 21-522 may not be
detained in the hospital or by the Department for a period in excess of 48 hours from
the time of the person’s admission, unless the administrator of the hospital, the chief
clinical officer of the Department, or the administrator’s or chief clinical officer’s
designee has, within that period, filed a written petition with the court for an order
authorizing the continued detention of the person for emergency observation and
diagnosis for a period not to exceed 7 days from the time the order is entered.
§ 21-524. Determination and order of court.
(a) Within a period of 24 hours after the court receives a petition for hospitalization
of a person for emergency observation and diagnosis, filed by the administrator of a
hospital or chief clinical officer of the Department pursuant to section 21-523, the
court shall:
(1) order the hospitalization; or
(2) order the person’s immediate release.
(b) The court, in making its determination under this section, shall consider the
written reports of the agent, officer, physician or qualified psychologist who made
the application under section 21-522, the certificate of the examining psychiatrist or
examining qualified psychologist which accompanied it, and any other relevant
information.
§ 21-525. Hearing by court.
The court shall grant a hearing to a person whose continued hospitalization is
ordered under section 21-524, if he requests the hearing. The hearing shall be held
within 24 hours after receipt of the request.
§ 21-526. Extension of maximum periods of time.
...
61
(c) The maximum period of time for detention for emergency observation and
diagnosis may be extended for up to 21 days, if judicial proceedings under
subchapter IV of this chapter have been commenced before the expiration of the
order entered under section 21-524 and a psychiatrist or qualified psychologist has
examined the person who is the subject of the judicial proceedings and is of the
opinion that the person being detained remains mentally ill and is likely to injure
himself or others as a result of the illness unless the emergency detention is
continued. For good cause shown, the Court may extend the period of detention for
emergency observation and diagnosis. The period of detention for emergency
observation and diagnosis may be extended pursuant to section 21-543(b) or
following a hearing before the Commission pursuant to subsections (d) and (e) of
this section.
(d) If the Commission, at the conclusion of its hearing pursuant to section 21-542
[reviewing a petition for civil commitment], has found that the person with respect
to whom the hearing was held is mentally ill and, because of the mental illness, is
likely to injure himself or others if not committed, and has concluded that a
recommendation of inpatient commitment is the least restrictive alternative available
to prevent the person from injuring himself or others, the detention for emergency
observation and diagnosis may be continued by the Department or hospital —
(1) Pending the conclusion of judicial proceedings under subchapter IV of this
chapter [governing civil commitment];
(2) Until the Court enters an order discharging the person; or
(3) Until the Department or hospital determines that continued hospitalization
is no longer the least restrictive form of treatment appropriate for the person being
detained.
...
62
APPENDIX B:
Subchapter IV of the Ervin Act, “Commitment Under Court Order”
(excerpts)
§ 21-541. Petition to Commission; copy to person affected.
(a) Proceedings for the judicial commitment of a person in the District of Columbia
may be commenced by the filing of a petition with the Commission by his spouse,
parent, or legal guardian, by a physician or a qualified psychologist, by a duly
accredited officer or agent of the Department, by the Director of the Department or
the Director’s designee, or by an officer authorized to make arrests in the District of
Columbia. The petition shall be accompanied by:
(1) a certificate of a physician or qualified psychologist stating that he has
examined the person and is of the opinion that the person is mentally ill, and because
of the illness is likely to injure himself or other persons if not committed
...
§ 21-542. Hearing by Commission; presence and rights of person affected; hearing
regarding liability.
(a) The Commission shall promptly examine a person alleged to be mentally ill after
the filing of a petition under section 21-541 and shall thereafter promptly hold a
hearing on the issue of his mental illness. The hearing shall be conducted in a manner
consistent with orderly procedure and in a physical setting not likely to have a
harmful effect on the mental health of the person named in such petition. In
conducting the hearing, the Commission shall hear testimony of any person whose
testimony may be relevant and shall receive all relevant evidence which may be
offered. A person with respect to whom a hearing is held under this section may, in
his discretion, be present at the hearing, to testify, and to present and cross-examine
witnesses.
...
63
§ 21-544. Determinations of Commission; report to court; copy to person affected;
right to jury trial.
If the Commission finds, after a hearing under section 21-542, that the person with
respect to whom the hearing was held is not mentally ill or if mentally ill, is not
mentally ill to the extent that he is likely to injure himself or other persons if not
committed, the Commission shall immediately order his release and notify the court
of that fact in writing. If the Commission finds, after the hearing, that the person
with respect to whom the hearing was held is mentally ill, and because of the illness
is likely to injure himself or other persons if not committed, the Commission shall
promptly report that fact, in writing, to the Superior Court of the District of
Columbia. The report shall contain the Commission’s findings of fact, conclusions
of law, and recommendations. A copy of the report of the Commission shall be
served personally on the person with respect to whom the hearing was held and his
attorney. A person with respect to whom the hearing was held with respect to whom
the report is made has the right to demand a jury trial, and the Commission, orally
and in writing, shall advise him of this right.
§ 21-545. Hearing and determination by court or jury; order; witnesses; jurors.
(a) Upon the receipt by the court of a report referred to in section 21-544, the court
shall promptly set the matter for hearing and shall cause a written notice of the time
and place of the final hearing to be served personally upon the person with respect
to whom the report was made and his attorney, together with notice that he has five
days following the date on which he is so served within which to demand a jury trial
or a trial by the Court. The demand may be made by the person or by anyone in his
behalf. If a jury trial or a trial by the Court is demanded within the five-day period,
it shall be accorded by the court with all reasonable speed. If a timely demand for
jury trial or a trial by the Court is not made, the court shall determine the person’s
mental condition on the basis of the report of the Commission, or on such further
evidence in addition to the report as the court requires.
(b) (1) If the Court or jury finds that the person is not mentally ill or is not likely
to injure himself or others as a result of mental illness, the Court shall dismiss the
petition and order the person’s release.
(2) If the Court or jury finds that the person is mentally ill and, because of that
mental illness, is likely to injure himself or others if not committed, the Court may
order the person’s commitment to the Department or to any other facility, hospital,
64
or mental health provider that the Court believes is the least restrictive alternative
consistent with the best interests of the person and the public. An order of
commitment issued pursuant to this paragraph shall be for a period of one year.
...
65
APPENDIX C:
The Incompetent Defendants Criminal Commitment Act (IDCCA) (excerpts)
§ 24-531.01. Definitions
For the purposes of this chapter, the term:
(1) “Competence” means that a defendant has sufficient present ability to
consult with his or her lawyer with a reasonable degree of rational understanding
and has a rational, as well as a factual, understanding of the proceedings against him
or her.
...
(5) “Incompetent” means that, as a result of a mental disease or defect, a
defendant does not have sufficient present ability to consult with his or her lawyer
with a reasonable degree of rational understanding or does not have a rational, as
well as a factual, understanding of the proceedings against him or her.
(6) “Inpatient treatment facility” means:
(A) Saint Elizabeths Hospital;
(B) Any other physically secure hospital for the examination or
treatment of persons with mental illness; or
(C) Any physically secure or staff-secure facility for the examination,
treatment, or habilitation of persons with intellectual disabilities.
...
(9) “Treatment” means the services or supports provided to persons with
mental illness or intellectual disabilities, including services or supports that are
offered or ordered to restore a person to competence, to assist a person in becoming
competent, or to ensure that a person will be competent.
...
66
§ 24-531.06. Court hearings during and after treatment.
(a) The Court shall hold a prompt hearing, with reasonable notice of such hearing
given to the prosecuting attorney, the defendant, and the defendant’s attorney of
record, and make a new finding as to the defendant’s competence when:
(1) Any period of treatment ordered under § 24-531.05(b), (c), or (e) is
completed; or [other conditions are met that present the potential termination of the
defendant’s treatment]
...
(c) (1) At the conclusion of a hearing held pursuant to subsection (a) of this
section, the court shall:
(A) Find that the defendant is competent; or
(B) Find that the defendant is incompetent and:
(i) There is a substantial probability that the defendant will attain
competence or make substantial progress toward that goal with an
additional period of time; or
(ii) There is no substantial probability that he or she will attain
competence or make substantial progress toward that goal in the
foreseeable future.
...
(4) If the court finds the defendant is incompetent pursuant to paragraph
(1)(B)(ii) of this subsection, the court shall either order the release of the defendant
or, where appropriate, enter an order for treatment pursuant to § 24-531.05(a) for up
to 30 days pending the filing of a petition for civil commitment pursuant to
subchapter IV of [the Ervin Act]. The court also may order treatment pursuant to
§ 24-531.07(a)(2) for such period as is necessary for the completion of the civil
commitment proceedings.
67
§ 24-531.07. Extending treatment pending the completion of a civil commitment
proceeding.
(a) Thirty days after the court has ordered extended treatment pursuant to
§ 24-531.06(c)(4), the court shall hold a status hearing to determine whether civil
commitment proceedings have been initiated pursuant to § 21-541 [of subchapter IV
of the Ervin Act] . . . .
(1) If a petition for civil commitment has not been filed prior to the hearing,
the court shall release the defendant from treatment unless extraordinary cause is
shown for the failure to file the petition, in which case the court may grant an
additional 5 days within which to file a petition.
(2) If a petition for civil commitment has been filed, the court may either order
that treatment be continued until the entry of a final order in the civil commitment
case or release the defendant from treatment.
...
(c) (1) If the court orders the release of a person in the criminal case or transfer
proceeding who has been committed to an inpatient treatment facility, and a petition
for civil commitment has been filed pursuant to § 21-541 [of subchapter IV of the
Ervin Act], the court shall remand the person to the inpatient treatment facility and
the inpatient treatment facility may detain the person pending a hearing on the [civil
commitment] petition conducted [by the Commission] pursuant to § 21-542.
(2) Within 7 days of the remand order, a person so detained may request a
probable cause hearing on the person’s continued detention before the Family Court
of the Superior Court of the District of Columbia pursuant to § 21-525 [of subchapter
III of the Ervin Act], in which case a hearing shall be held within 24 hours after the
receipt of the request.
...