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within a reasonably short period of time. In addition, the Committee contemplates that the hearing provided for in subsection (d) should be held promptly after the reports are filed.

The report of each phychiatrist must include (1) the acquitted person's history and present symptoms; (2) a description of the psychological and medical tests employed and their results; (3) the psychiatrist's findings; and (4) the psychiatrist's opinions as to diagnosis, prognosis, and whether the person is presently suffering from a mental disease or defect as a result of which his release would create a substantial danger to himself or to the person or property of others. The first three items are identical to those required under sections 3611 and 3612. The fourth is somewhat different reflecting the difference in the procedure involved. Subsection (d) affords a hearing similar to that provided in other sections of the subchapter.

Subsection (e) provides that the court must make a determination, based upon a preponderance of the evidence, as whether the acquitted person is presently suffering from a mental disease or defect as a result of which his release would create a substantial danger to himself or to the person or property of another.

If the court makes an affirmative finding of present insanity and substantial danger, it must commit the person to the custody of the Attorney General, who, in turn, must hospitalize the person in a suitable facility for treatment. The commitment will be until the person's mental condition is so improved that his release would not create a substantial danger to himself or to the person or property of another. This commitment procedure not only affords assistance to those requiring the benefit of treatment, but also affords the public protection from those who, due to mental disease or defect, pose a danger to the rest of society.

Under subsection (f), when the head of the facility in which an acquitted person is hospitalized determines that the person has recovered to the extent that his release would not be dangerous to himself or to another, the head of the facility must file a certificate so stating with the clerk of the committing court. Upon receipt of the certificate, the court must either order the release of the person, or, upon motion of the government, or upon its own motion, hold a hearing to determine whether the person should be released. The hearing must follow the due process requirements of subsection (d). After the hearing, if the court finds by a preponderance of the evidence that the person has recovered from his mental disease or defect to such an extent that his release would no longer create a substantial danger to himself or to the person or property of another, the court must order the immediate release of the person.

Subsection (g) requires the head of the facility in which an acquitted person is hospitalized to submit annual reports concerning the mental condition of the person and recommendations concerning his continued hospitalization to the committing court. This provision is similar to the reporting procedure set forth in section 3611(g) and the comments on that section have equal applicability here.

Subsection (h) merely states that the acquitted person committed under this section retains the right to habeas corpus relief. Thus, nothing in section 3613 should be construed as precluding an acquitted

person committed under this section from establishing by writ of habeas corpus his eligibility for release under the provisions of this

section.

SECTION 3614. HOSPITALIZATION OF A CONVICTED PERSON SUFFERING FROM MENTAL DISEASE OR DEFECT

1. In General

Section 3614 sets forth the procedure to be followed when there is reasonable cause to believe that a recently convicted defendant may be presently suffering from a mental disease or defect for the treatment of which he is in need of custody, care, or treatment in a mental hospital. This section is new to Federal law and is inserted in order to assist the court in determining the proper facility for commitment of a convicted defendant. This section is also for the benefit of a convicted defendant who is mentally ill and who needs hospitalization. In addition, the hospitalization of such a person benefits society not only by protecting the public from mentally ill convicts but also by treating and hopefully curing such a person.

2. Present Federal Law

Present Federal law contains no provision for the hospitalization, in lieu of imprisonment in a penal facility, of a convicted person suffering from a mental disease or defect.5

3. Provision of S. 1, as Reported

51

Subsection (a) of section 3614 provides that, within ten days after a defendant is found guilty of an offense, the defendant or the government may file a motion for a hearing on the present mental condition of the defendant. The court must grant the motion and order a hearing if there is reasonable cause to believe that the defendant may be presently suffering from a mental disease or defect for the treatment of which he is in need of custody, care, or treatment in a mental hospital. The motion must state the grounds upon which the motion is made; this follows the requirement set out in Rule 47 of the Federal Rules of Criminal Procedure.

In addition, the court, on its own motion, may order a hearing on the present mental condition of the defendant at any time prior to the imposition of sentence, if facts are brought to the attention of the court which would lead the court to have a reasonable belief that the defendant may be presently suffering from a mental disease or defect for the treatment of which the defendant is in need of custody, care, or treatment in a mental hospital. In such cases, the court must order a hearing on the mental condition of the defendant. These facts might be brought to the attention of the court, if, as part of the presentence procedure, the court had ordered that the defendant be examined by two or more psychiatrists pursuant to section 2002 (c).

Subsection (b) of section 3614 provides the mechanism whereby the convicted defendant may be examined by psychiatrists designated by the court. This procedure is similar to that set forth in section 3611. Subsection (c) providing for the psychiatric reports and subsection (d) dealing with the procedures for the hearing are also quite similar

51 Under 18 U.S.C. 4241 a procedure is provided for an inmate who, after he has been imprisoned, is found to be mentally ill. None exists, however, at the earlier stage contemplated by section 3614.

to their parallel subsections discussed earlier in relation to the preceding sections of this subchapter. One distinction under section 3614 is that the psychiatrist, among his other opinions, must report on the person's need for custody, care, and treatment in a hospital. At this point the defendant has been convicted and the issue is the best disposition under the circumstances. This contrasts with the required opinion under section 3613, dealing with an acquitted person, where the issue posed is the person's danger to himself or to others.

Subsection (e) provides that if, after the hearing, the court is of the opinion that the defendant is presently suffering from a mental disease or defect and should be committed to a mental hospital for custody, care, or treatment, the court then must commit the defendant to the custody of the Attorney General for hospitalization. This subsection is different from other substantially similar commitment subsections in this subchapter in that the court need not make a finding based upon a preponderance of the evidence. The Committee has permitted the court to base the defendant's hospitalization upon its own opinion without specifying a specific burden of proof because a trial judge in the Federal judicial system generally has wide discretion in determining the sentence to impose.2 The Committee has no intention of interfering with this discretion of the court.

Under this subsection, commitment is to be to the custody of the Attorney General who must hospitalize the defendant for treatment in a suitable mental hospital or other facility. This commitment to the Attorney General constitutes a provisional sentence to imprisonment for the maximum term authorized by chapter 23 for the offense of which the defendant was found guilty. This sentence is provisional, however, in light of the release provision set forth in subsection (f).

Under subsection (f), when the head of the facility in which the defendant is hospitalized determines that the defendant has recovered from his mental disease or defect to the extent that he is no longer in need of custody, care, or treatment in a mental hospital, the head of the facility must file a certificate so stating with the clerk of the committing court. The clerk then must send copies of the certificate to the attorney for the defendant and to the attorney for the government. Upon receipt of the certificate, if the defendant's provisional sentence imposed pursuant to subsection (e) has expired, the court need not act since the Attorney General must release the defendant. However, if the defendant's sentence has not expired, the court must order a hearing to determine whether the defendant's sentence should be reduced. At the hearing, the defendant must be accorded the due process rights of subsection (d).

After the hearing, the court, within its discretion, may order that the defendant be imprisoned for the remainder of his sentence or for any lesser term. The court also has the option of placing the the defendant on probation pursuant to the provisions of chapter 21. However, if the court is of the opinion that the defendant has not recovered to the necessary extent, the Committee intends that the court reinstitute the procedures under subsections (a) through (e) for a new determination of the defendant's mental condition, and, if necessary, the court may recommit the defendant to the custody of the Attorney General for continued hospitalization.

52 See United States v. Tucker, 404 U.S. 443, 446 (1972).

Subsection (g) requires the head of the facility in which the defendant is hospitalized to submit annual reports concerning the mental condition of the defendant and recommendations concerning his continued hospitalization to the committing court. This subsection parallels the similar procedure set forth in other sections of the subchapter.

SECTION 3615. HOSPITALIZATION OF AN IMPRISONED PERSON SUFFERING FROM MENTAL DISEASE OR DEFECT

1. In General

Section 3615 deals with the hospitalization of an imprisoned person who is presently suffering from a mental disease or defect. This section significantly changes 18 U.S.C. 4241 and 4242.

One major change the Committee has made in existing law is to require a court hearing before a prisoner may be transferred to a mental hospital. The Committee is in agreement with present Federal law which permits the Attorney General to determine the appropriate method of handling Federal prisoners as well as the appropriate place of incarceration for these prisoners.53 Indeed, the Committee has generally recodified present Federal law in this respect. 54 While the Committee is unaware of abuses by Federal authorities with respect to transfer of prisoners to mental hospitals, the Committee is aware of certain shocking cases involving transfer of State prisoners.55 It is to insure that Federal prisoners continue to receive fair and just treatment that the Committee has included the protective procedures of section 3615.

Certain factors have led the Committee to the conclusion that incarceration in a mental hospital is sufficiently different from incarceration in a penal institution to require these procedural safeguards. First, although regrettable, it is a fact that there is a stigma attached to the mentally ill which is different from that attached to criminals. Thus, a prisoner transferred to a mental hospital might possibly be described as "twice cursed." 56

Second, there are numerous restrictions and routines in a mental hospital which differ significantly from those in a prison. Since these restrictions and routines are designed to aid and protect the mentally ill, persons who do not have need for such discipline should not be subjected to it.57

Most importantly, however, the Committee is concerned that a person mistakenly placed in a mental hospital might suffer severe emotional and psychological harm. As the Second Circuit, in a State prisoner transfer case, graphically put it:

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*** [W]e are faced with the obvious but terrifying possibility that the transferred prisoner may not be mentally ill at all. Yet he will be confined with men who are not only mad

53 See 18 U.S.C. 4082.

5 See subchapter C of chapter 38, especially section 3821 (b).

55 E.g., United States ex rel. Schuster v. Herold, 410 F.2d 1071 (2d Cir.), cert. denied, 396 U.S. 847 (1969), and cases cited therein.

56 See generally Morris, The Confusion of Confinement Syndrome: An Analysis of the Confinement of Mentally Ill Criminals and Ex-Criminals by the Department of Corrections of the State of New York, 17 Buff. L. Rev. 651 (1968).

57 See Matthews v. Hardy, 420 F.2d 607 (D.C. Cir. 1969), cert. denied, 397 U.S. 1010 (1970).

58 United States ex rel Schuster v. Herold, supra note 55, at 1078.

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but dangerously so. [H]e will be exposed to physical,
emotional, and general mental agony. Confined with those
who are insane and indeed treated as insane, it does not take
much for a man to question his own sanity and in the end to
succumb to some mental aberration.

Accordingly, the Committee has concluded that a prisoner's transfer to a mental hospital or prison maintained for the criminally insane cannot be handled as a mere administrative matter. In view of the substantial deprivations, hardships, and indignities such a move may produce in a sane prisoner, judicial scrutiny is necessary to insure that the procedures preceding the transfer adequately safeguard the fundamental rights of the prisoner.

2. Present Federal Law

18 U.S.C. 4241 currently provides that a board of examiners must examine an inmate of a Federal penal institution who is alleged to be insane. The Board must report its findings to the Attorney General who may direct that the prisoner be removed to the United States hospital for defective delinquents.

18 U.S.C. 4242 states that an inmate of the United States hospital for defective delinquents whose sanity is restored prior to the expiration of his sentence may be retransferred to a penal institution. 3. Provisions of S. 1, as Reported

As noted, under section 3615 a prisoner who is serving a sentence in a Federal facility may not be transferred to a mental hospital without a court order. Section 3615 (a) provides the mechanism whereby the court for the district in which the defendant is imprisoned may hold a hearing on the present mental condition of a defendant serving a sentence of imprisonment. First, the defendant, or an attorney for the government at the request of the head of the facility in which the defendant is imprisoned, may file a motion with the court for a hearing on the present mental condition of the defendant. A motion filed under this subsection stays the release of the defendant until the procedures contained in this section are completed.

After the motion is filed, the court must order a hearing to determine if there is reasonable cause to believe that the defendant may be presently suffiering from a mental disease or defect for the treatment of which he is in need of custody, care, or treatment in a mental hospital.

Subsection (b) provides that after the court orders that a hearing be held to determine the present mental condition of the defendant pursuant to subsection (a), the court, in its discretion, may order that the defendant be examined by two qualified psychiatrists, one designated by the court and one selected by the defendant.59 If the court orders an examination and the defendant waives his right to select a psychiatrist, the Committee intends that the court designate two psychiatrists to examine the defendant, As the Committee previously concluded concerning other sections in this subchapter, if the court orders an examination, the defendant must be examined by two psychiatrists to reduce the likelihood of idiosyncratic evaluation.

50 Payment for the psychiatrist selected by the defendant may be made pursuant to chapter 34 of this title in appropriate cases.

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