Section 3611.

will extend the protection of juvenile treatment to all appropriate persons. The Committee, therefore, believes the added language to be a significant improvement over the pre-1974 law.

The definition of juvenile delinquency provided by section 3606 is essentially a recodification of 18 U.S.C. 5031 as amended by the 1974 Act. Any offense committed by a juvenile is an act of juvenile delinquency. Thus, offenses of persons under sixteen years old, not subject to criminal prosecution, will be subject to proceedings as acts of juvenile delinquency.

Prior to the 1974 Act, the statute excluded offenses punishable by death or life imprisonment from the definition of juvenile delinquency. Rather than arbitrarily eliminating all Class A felony offenders over the age of sixteen from treatment as juvenile delinquents, this subchapter authorizes the Attorney General to make a motion to have the court decide whether a criminal prosecution as an adult should be undertaken.25 The Committee strongly believes that this limited use of discretion promotes the individualized attention demanded by the juvenile justice system.

SUBCHAPTER B.-OFFENDERS WITH MENTAL DISEASE OR DEFECT

(Sections 3611-3617)

Subchapter B of chapter 36 of S. 1, as reported, deals with the procedure to be followed by the Federal courts with respect to offenders suffering from a mental disease or defect. The scope of this subchapter is much more comprehensive than that of the current law on the subject-chapted 313 of title 18, United States Code. Of particular importance is the provision in section 3613 that provides for the hospitalization of a person adjudged to be not guilty by reason of insanity.

SECTION 3611. DETERMINATION OF MENTAL COMPETENCY TO STAND TRIAL

1. In General

Section 3611 follows present Federal law in that it provides for a determination by the court of a defendant's competency to stand trial. However, section 3611 modifies and expands upon current 18 U.S.C. 4244 to conform to the general scheme of the new title 18.

The function of the incompetency standards are twofold: first, it is fundamentally unfair to convict an accused person in what is, in effect, in absentia. This was basically the Supreme Court's position in Pate v. Robinson,1 in terms of the due process clause of the Fourteenth Amendment. Second, the accuracy of the factual determination of guilt. becomes suspect when the accused lacks the effective opportunity to challenge it by his active involvement at the trial.

25 Section 3603 (a) (2) (c).

1383 U.S. 375 (1966).

2 See the report of Professor David Robinson, Hearings, pp. 6427-6429.

2. Present Federal Law

Competency to stand trial in Federal courts is governed by chapter 313 of title 18,3 which constitutes part of comprehensive legislation enacted in 1949 "to provide for the care and custody of insane persons charged with or convicted of offenses against the United States." The chapter was proposed by the Judicial Conference of the United States "after long study by a conspicuously able committee, followed by consultation with Federal district and circuit judges." 5

18 U.S.C. 4244 deals with the procedure to be followed by the court in determining the mental competency of a defendant after arrest and prior to the imposition of sentence or prior to the expiration of a period of probation. Upon motion by the government or the defendant, or on its own motion, the court is required to order that the defendant be examined by at least one psychiatrist. If the psychiatrist's report indicates mental incompetency, the court must then hold a hearing and make a finding with respect to the defendant's competency.

The statute does not state an explicit test for the presence or absence of mental competency to stand trial, although the statute does state that the question at issue in having the defendant examined by a psychiatrist is to determine whether the accused is "presently insane or otherwise so mentally incompetent as to be unable to understand the proceedings against him or properly to assist in his own defense." The leading decision on the question of the test to be applied is Dusky v. United States. There the Court reversed a conviction after the government admitted that the trial court had erred in finding competency on the basis of the record before it. In a very brief, per curiam opinion, the Supreme Court stated: "

We also agree with the suggestion of the Solicitor General that it is not enough for the district judge to find that "the defendant (is) oriented to time and place and (has) some recollection of events," but that the "test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as a factual understanding of the proceedings against him."

18 U.S.C. 4245 sets forth the procedure to be followed whenever there is probable cause to believe that a person convicted of an offense was mentally incompetent at the time of his trial, but where the issue of mental competency was not raised or determined before or during the trial. If the court finds that the person was mentally incompetent at the time of his trial, the court must vacate the judgment of conviction and grant a new trial.

18 U.S.C. 4246 provides for the commitment of a defendant found mentally incompetent under section 4244 or 4245. The commitment is to the custody of the Attorney General until the defendant is competent to stand trial or until the pending charges against him are disposed of according to law.

3. Provisions of S. 1, as Reported

Section 3611 of S.1 contains nine subsections which deal exclusively with the determination of the mental competency of the defendant to stand trial. This section tracks, with minor modifications, sections 4244, 4245, and 4246 of title 18 as they now exist. It is intended that the procedures for determining the mental competency of the defendant to stand trial are also to apply to the issue of the defendant's competency to enter a plea.

Section 3611(a) permits a motion to determine the mental competency of the defendant to stand trial to be filed by the government or by the defendant after the defendant has been arrested or charged and before the imposition of sentence on the defendant. The court may order a hearing upon its own motion, or on the motion of the government or the defense, but it must order the hearing if there is reasonable cause to believe that the defendant is presently incompetent to stand trial. Such reasonable cause exists if the court believes that the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature of the proceedings against him or to assist properly in his defense.8

Section 3611 (a) substantially follows 18 U.S.C. 4244 in that the motion for a competency hearing may be filed by the government or by the defendant; in addition the court may act sua sponte. Under section 3611(a) there is no specific requirement, as in 18 U.S.C. 4244 that the motion set forth the grounds for the belief that the defendant is incompetent to stand trial: however, this requirement is incorporated into the statute by Rule 47 of the Federal Rules of Criminal Procedure which provides that all motions to the court must state the grounds upon which they are made. Of course, pursuant to that rule, the motion may be made orally,10 but grounds for the motion must still be stated.

The motion may be made only after the commencement of a prosecution against the defendant and prior to the imposition of sentence on the defendant. Under 18 U.S.C. 4244, the motion could only be made after arrest and prior to the imposition of sentence or prior to the expiration of any period of probation.11 Referring to the commencement of a prosecution, as does section 3611 (a), sets the procedure in motion at the earliest of the date of the actual arrest or of the date of the filing of an information or the return of an indictment, thus preserving the current case law interpretation.12 The Committee has eliminated the provision on filing a motion during a period of probation as anomalous in light of the other provisions of this subchapter, and because Rule 33 of the Federal Rules of Criminal Procedure allows

The Committee intends to perpetuate current law to the effect that neither amnesia nor the use of narcotics per se renders an accused incompetent to stand trial. See, eg.. I'nited States v. Borum, 464 F.2d 896 (10th Cir. 1972); United States v. Williams, 468 F.2d 819 (5th Cir.1972).

See United States v. Becera-Soto, 387 F.2d 792 (7th Cir. 1967), cert. denied, 391 U.S. 928 (1968): Krunnick v. United States, 264 F.2d 213 (8th Cir. 1959).

10 See United States v. Irvin, 450 F.2d 968 (9th Cir. 1971); United States v. Burgin, 440 F.2d 1092 (4th Cir. 1971).

11 This period has been judicially construed to include the time after arrest and before the defendant is indicted. United States v. Adams. 296 F. Supp. 1150 (S.D.N.Y. 1969): or arraigned. Arco v. Ciccone, 359 F.2d 796 (8th Cir. 1966); on the day of trial, Mitchell v. United States, 316 F.2d 354 (D.C. Cir. 1963); and after trial. United States v. Laurenson, 210 F. Supp. 422 (D. Md. 1962), aff'd, 315 F.2d 612 (4th Cir.), cert. denied, 373 U.S. 938 (1963).

12 Compare section 511 (e).

the defendant to move for a new trial based upon newly discovered evidence within two years after final judgment.13 Evidence that the defendant was incompetent at the time of trial most likely would be newly discovered evidence. In addition, the defendant may file a motion under 28 U.S.C. 2255 at any time.11

18 U.S.C. 4244 provides that the court is to hold a hearing if the report of the examining psychiatrist indicates a state of mental incompetency in the defendant. Section 3611(a) gives the court discretion to order a competency hearing to determine the mental competency of the defendant on its own motion or on the motion of the government or the defense. Moreover, it is mandatory that the court order a hearing if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature of the proceedings against him or to assist properly in his defense. Thus, unlike present Federal law, section 3611(a) permits the court to order that a hearing be held prior to examination by a psychiatrist, if the requisite finding can be made. However, the Committee contemplates examination by psychiatrists to be routine in virtually all cases, and although the discretion to hold the hearing without a psychiatric examination is provided, the court may not abuse this discretion and refuse to order an examination where the facts warrant an examination.1 15

Subsection (b) of section 3611 provides the mechanism whereby the defendant may be examined by psychiatrists designated by the court. After the court orders that a hearing be held to determine the competency of the defendant, the court may order that the defendant be examined by at least two qualified psychiatrists at the expense of the government. The court may determine that more than two psychistrists should examine the defendants. It is to cover these situations that the psychiatric examination of subsection (b) is left wholly within the discretion of the court.

In addition, if the court orders an examination, it must order an examination by at least two psychiatrists. The Committee is of the opinion that a minimum of two psychatrists must be appointed since competency standards are subject to significant variations of expert judgment.is

For the purpose of the examination, the court is empowered to commit the defendant to the custody of the Attorney General who must hospitalize the defendant in a suitable facility. The commitment may not be for a period longer than sixty days. The committee has not provided a remedy or sanction for the situations where the defendant's commitment is longer than sixty days, but habeas corpus would be available. However, since the examination, and in fact all the procedures included in this section, are for the benefit of the defendant,17 as

13 See the recommendation of Anthony P. Marshall representing the views of the New York State Bar Association's Committee on Federal Legislation. Hearings. pp. 6367-6368. 14 See Hanson v. United States, 406 F.2d 199 (9th Cir. 1969). Moreover, the section 2255 motion obviates the necessity to include a section similar to 18 U.S.C. 4245 which sets out the procedure to be followed when the Director of the Bureau of Prisons finds that a prisoner was incompetent at trial. Thus, the defendant may file a section 2255 motion based upon his incompetency at trial, and the government is under a continuing duty to notify the court of such information.

15 See United States v. Cook, 418 F.2d 321 (9th Cir. 1969).

16 See the report of Professor David Robinson, Hearings, p. 6429.

17 It has been held that it is a denial of due process to try a defendant who is mentally incompetent to stand trial. See Pate v. Robinson supra note 1; United States v. Horowitz, 360 F. Supp. 772 (E.D. Pa. 1973).

well as for the benefit of society, it would not be appropriate to exclude from evidence at the hearing a psychiatrist's report made on a defendant whose commitment extended beyond sixty days. Nevertheless, the Committee expects that the sixty-day limitation on hospitalization for a psychiatric examination will be strictly adhered to.is

Subsection 3611 (c) requires each examining psychiatrist to file with the court a report that includes (1) the defendant's history and present symptoms; (2) a description of the tests employed and their results; (3) the psychiatrist's findings; and (4) the psychiatrist's opinions as to diagnosis, prognosis, and competency of the defendant. Copies of this report must also be sent to the defendant and the attorney for the government.19

Although the psychiatrists are required, pursuant to subsection (b), to examine the defendant, the Committee is aware that the psychiatrists may not also administer tests to the defendant in all cases. The absence of tests will not invalidate the psychiatrists' report to the court and is not a basis for an objection to the report that is filed if the reporting psychiatrists have indeed examined the defendant and studied the data, if any, gathered from tests and the reports made by others.20

Section 3611(d) provides for a hearing that fully comports with the requirement of due process. Included in the protections afforded by the subsection for the hearing is the right to counsel (court appointed if the defendant is indigent), the opportunity to confront and cross-examine witnesses, as well as the right to present witnesses in his own behalf.

21

Subsection (e) of section 3611 provides that the court must make a determination with respect to the defendant's competency based upon a preponderance of the evidence. It should be noted that the question of competency of a defendant is for the court to determine and is not to be tried before a jury. This is in accord with present Federal law."1 The finding that the court must make is whether the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature of the proceedings against him or to assist properly in his defense. This test of competency, in essence, adopts the standards set forth by the Supreme Court in Dusky v. United States, supra.

If the court makes a finding of incompetency, it must then commit the defendant to the custody of the Attorney General who is required to hospitalize the defendant in a suitable facility.22 The commitment will be until the defendant's mental condition has improved to the point that he is competent to stand trial, or until the pending charges against him are disposed of.2

23

This commitment procedure is identical to current Federal law and

18 See the testimony of Anthony P. Marshall supra note 13.

19 Throughout the subchapter, references are made to reports being sent to the defendant. Of course. this means copies of the report are also to be sent to his attorney or legal guardian. Sending a report to an incompetent defendant alone is. in essence, a useless act. 20 See Tarvested v. United States, 418 F.2d 1043 (8th Cir. 1969), cert. denied, 397 U.S. 935 (1970).

21 See United States v. Huff, 409 F.2d 1225 (5th Cir.) cert. denied, 396 U.S. 857 (1969): United States v. Davis, 365 F.2d 251 (6th Cir. 1965).

22 Pursuant to section 3617(b), the Attorney General is authorized to contract for nonFederal facilities in order to hospitalize the defendant.

23 If all charges against a presently mentally defective defendant are dropped, the head of the facility in which the defendant is hospitalized may notify State authorities of the defendant's condition so that State authorities may determine if civil commitment proceedings are warranted. If State authorities cannot or will not arrange for the commitment of the defendant, proceedings under section 3616 may be instituted.

24 18 U.S.C. 4246.