United States v. Christopher Perkins ( 2023 )

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-7024
UNITED STATES OF AMERICA,
Petitioner – Appellee,
v.
CHRISTOPHER PERKINS,
Respondent – Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. W. Earl Britt, Senior District Judge. (5:09-hc-02062-BR)
Argued: September 21, 2021 Decided: May 4, 2023
Before AGEE and WYNN, Circuit Judges, and Frank W. VOLK, United States District
Judge for the Southern District of West Virginia, sitting by designation.
Vacated and remanded by published opinion. Judge Volk wrote the majority opinion, in
which Judge Wynn concurred. Judge Agee filed an opinion concurring in the judgment.
ARGUED: Jennifer Claire Leisten, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Genna Danelle Petre, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: G. Alan
DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
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VOLK, District Judge:
This appeal presents two consequential questions. Both relate to the continued
involuntary commitment of those afflicted with a mental illness. A commitment wrongly
perpetuated is an unwarranted restraint of liberty; a commitment errantly discontinued
poses a danger to the committee and the public. See United States v. Bilyk, 949 F.2d 259,
261 (8th Cir. 1991) (quoting United States v. Clark, 893 F.2d 1277, 1282 (11th Cir. 1990))
(noting the district court is entrusted with “‘an awesome responsibility to the public to
ensure that a clinical patient’s release is safe.’”); United States v. Williams, No. 22-6464,
2022 WL 16984705, at *5 (4th Cir. Nov. 17, 2022) (“Refusing to release a person who has
served a criminal sentence based on a prediction that it would be too dangerous to do so is
serious business.”); id. at *6 (Richardson, J., dissenting) (noting these types of cases require
“tough predictive judgment[s]….”).
First, we are asked to set the proof standard necessary to support revocation of
conditional discharge under 18 U.S.C. § 4246(f). No circuit has exhaustively addressed the
question. Second, we consider the process by which the district court should make and
support its crucial findings on dangerousness under § 4246(f) (the “dangerousness inquiry”
or “risk assessment”). While there have been profound developments in the science of risk
assessment in the past three decades, they are unmatched by updated, corresponding legal
guidance respecting how the inquiry ought to proceed for those under a federal civil
commitment order. We thus write at some length.
The district court did not have the benefit of the analyses within. We consequently
vacate and remand for further proceedings.
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I.
A. Factual Background
On July 10, 2007, a criminal complaint was filed against Christopher Perkins. As
discussed more fully within, he threatened a United States congressman. See Criminal
Complaint, United States v. Perkins, No. 3:07-MJ-226, ECF No. 1 (W.D. Ky. July 10,
2007). Mr. Perkins was deemed incompetent and unlikely to be restored in the foreseeable
future. See Order, Perkins, No. 3:07-MJ-226, ECF No. 31. Mr. Perkins was then evaluated
for dangerousness by the Bureau of Prisons (“BOP”) at Federal Medical Center Butner
(“FMC Butner”). Id. On May 20, 2009, a certificate of mental disease or defect and
dangerousness issued pursuant to 18 U.S.C. § 4246. It was subsequently filed in the United
States District Court for the Eastern District of North Carolina. J.A. 3, 16. 1 The district
court found that Mr. Perkins was “suffering from a mental disease or defect, as a result of
which his release would create a substantial risk of bodily injury to another person or
serious damage to the property of another.” Id. at 21. On December 7, 2009, Perkins was
committed civilly to the custody of the Attorney General. Id. at 21.
Mr. Perkins’ mental condition improved with treatment. See id. at 22–23. On May
3, 2010, the district court ordered his conditional discharge. Id. at 41. Mr. Perkins returned
home and lived with his mother. Id. at 42. In 2011, however, Mr. Perkins violated his
1
Citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by
the parties in this appeal.
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conditional discharge. Id. at 54. The district court revoked the term and recommitted him.
Id.
On March 6, 2018, the United States certified his improved mental condition. It
requested conditional discharge anew pursuant to 18 U.S.C. § 4246(e). Id. at 60–70. The
district court conditionally released Mr. Perkins again on March 7, 2018. Id. at 78. The
United States Probation Office for the Western District of Kentucky undertook supervision.
Id. at 78–83. Nineteen conditions of release were imposed, including the following:
Condition 3: Reside at, and abide by the rules of, Fern Terrace Residential
Care Facility (“Fern Terrace”);
Condition 4: Participate in global positioning service (“GPS”) monitoring;
Condition 6: Actively participate in mental health care;
Condition 7: Take all prescribed medications; and
Condition 15: No travel beyond the jurisdiction without permission of the
supervising United States Probation Officer.
Id.
On February 5, 2019, Mr. Perkins’ supervising United States Probation Officer
notified the district court of certain violations. He identified Conditions 3, 4, 6, 7, and 15.
J.A. 90–91. He alleged Mr. Perkins (1) refused to follow Fern Terrace rules, (2) repeatedly
failed to maintain his GPS monitor, resulting in false alerts, (3) refused to meet with his
psychiatrist and take prescribed medications, and (4) failed to receive permission before
leaving the district. Id.
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On February 6, 2019, the government moved to revoke Mr. Perkins’ conditional
discharge. Id. at 84. On February 8, 2019, a bench warrant issued. Id. at 10–11. He was
apprehended the same day. Id.
B. Procedural Background
On April 29, 2019, Mr. Perkins appeared for a revocation hearing. J.A. 96–106. The
district court treated the probation officer’s report as evidence and recited in detail its
allegations:
It is alleged that he violated condition No. 3 by failing to abide by all
the rules established by the housing facility in that on November 15th, 2018,
Mr. Perkins reported during a resident counsel [sic] meeting at Fern Terrace
that he had bottles of vitamins in his room which are not allowed. All
medicines, including over-the-counter medicine, must be distributed by the
Fern Terrace staff and are not permitted in residents’ rooms.
When confronted, Mr. Perkins refused to give the vitamins to the staff
and locked them in his cabinet with a padlock. The staff called the Probation
Officer, Mr. McChesney, who responded to the site and spoke to Mr. Perkins.
Mr. Perkins then refused the officer’s instructions to unlock his cabinet and
give the vitamins to the staff who could give them to him with his
medications. And the staff had to cut the lock off . . . Mr. Perkins’ cabinet to
retrieve the vitamins.
On June 28, 2018, it is alleged that Mr. Perkins took another resident’s
money to purchase fast food and returned without giving the resident the food
or money.
And it was also determined that Mr. Perkins had falsified the sign-out
log at Fern Terrace on that date.
It’s alleged that Mr. Perkins has violated the condition No. 4 which
requires him to participate in active GPS location for 12 months.
And it is alleged that on the following dates, Mr. Perkins failed to
change his battery as instructed, which resulted in low battery alerts that had
to be addressed usually in the middle of the night: April 3rd, 2018; April 5th,
2018; April 7th, 2018; April 14th, 2018; April 15th, 2018; May 7th, 2018;
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July 7th, 2018; October 3rd, 2018; February 1st, 2019; and February 3rd,
2019.
The officer stated that he counseled Mr. Perkins multiple times after
these alerts on how and when to change the battery in his monitor.
It is alleged that he has violated . . . condition No. 6, which . . . requires
him to maintain active participation in a regimen of mental health care, which
may include inpatient or outpatient residential treatment as directed by his
U.S. probation officer and to follow all rules, regulations, instructions of the
treatment staff and comply with the treatment regimen recommended by the
treatment providers.
Further provides that any change in the mental health providers must
be approved in advance by the probation officer. In this report it is alleged
that Mr. Perkins on December 18th, 2018, refused to see the psychiatrist at
the facility where he was living.
Condition No. 7 requires the respondent to take all medications
prescribed to him by his treatment providers. And it is alleged that on
multiple dates, Mr. Perkins refused to take different medicines prescribed for
him.
Condition No. 15 requires respondent to not travel out of the Federal
Judicial District without prior approval of his probation officer; and it is
alleged that on August 8, 2018, Mr. Perkins requested and was permitted --
given permission by the Fern Terrace staff to go to a local hospital for an
illness two times and that he left the hospital and traveled with his mother to
a hospital in Nashville, Tennessee which is outside the Western District of
Kentucky without permission of his probation officer.
Id. at 98-100. Counsel for Mr. Perkins stated her client “denie[d] the violations.” Id. at 101,
104–05. The district court then provided Mr. Perkins an opportunity to respond to the
allegations. Id. at 105.
Mr. Perkins told the district court he left the jurisdiction due to a medical
emergency; he added his probation officer “said that [was] okay with him [and] to keep
him posted.” Id. at 101–02. Mr. Perkins also said he tried to follow the Fern Terrace rules
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as best he could. Id. at 103. He too denied the alleged violations. Id. at 101, 104–05. He
added as follows:
I wasn’t given a lot of rules in the first three or four days adjusting to living
at Fern Terrace. And they had some of the rules posted on the wall so I read
those and reread those before this here. And Jodie Key, assistant
administrator, and Valerie didn’t give me much communication that I was
causing a lot of problems at Fern Terrace.
Id. at 100. The district court asked Mr. Perkins’ counsel if she desired to question him. Id.
She declined. Id. The district court again asked if there was any additional evidence to be
taken. Id. None was offered. Id.
After finding Mr. Perkins violated his conditional discharge (J.A.104), the district
court observed as follows:
Well, Mr. Perkins, I’m going to have to find that you have violated the terms
and conditions of your conditional release and recommit you, which isn’t to
say that you can’t get out again on conditional release; but it’s obvious to me
that you have somehow allowed the problems of other people, some in the
facility where you live and primarily your mother, to take priority over your
requirement that you abide by the conditions of the supervised release that
you were under. You need to understand that when you are released on
supervised release, you are under the daily control of your United States
Probation Officer and when that probation officer tells you something, like
he told you to unlock that safe in your room, your door — drawer or
whatever, that is just like the Court speaking to you and if you don’t do that,
you’re violating this Court’s order and we just can’t operate that way. You’re
going to have to live up to the terms and conditions of your supervised release
if you are allowed to leave again.
Id. at 104–05. Mr. Perkins was then recommitted pursuant to 18 U.S.C. § 4246(f). J.A. 105,
107.
On June 21, 2019, Mr. Perkins appealed. Id. at 11. He noted the district court failed
to find, as required by § 4246, that he posed a substantial risk of bodily injury to another
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person or serious damage to the property of another. See Brief of Appellant, United States
v. Perkins, No. 19-6893, ECF No. 16, at *20–21 (filed Nov. 26, 2019). The United States
moved to remand in light of United States v. Taylor, 776 F. App’x 155 (4th Cir. 2019). J.A.
111–12. On February 28, 2020, we remanded as requested “for a rehearing as to whether
[Mr. Perkins’] continued conditional release would create a substantial risk of bodily injury
to another person or serious damage to property of another . . . .” Id. at 108.
On June 1, 2020, the district court convened the rehearing. Id. at 122–44. It fully
discussed the procedural posture to that point and, in painstaking detail, recited the
violations alleged by the probation officer. Id. at 125. The district court, inter alia, recited
(1) its review of the transcribed April 29, 2020, hearing, (2) the probation officer’s
memorandum, and (3) a letter from Fern Terrace Administrator Valerie Carter. Id. at 126–
27. Mr. Perkins’ counsel stated it was unnecessary to repeat the entire April 27, 2019,
proceeding. Id. at 125–26. She said Mr. Perkins continued to deny the alleged violations.
Id. at 126.
Mr. Perkins’ counsel asserted Fern Terrace was a “bad fit.” She added none of the
alleged violations, if true, warranted a dangerousness finding. Id. at 128–29. The
government responded that revocation was necessary given “an overwhelming series of
events that are fairly typical of Mr. Perkins’ past.” Id. at 131. It emphasized “a pattern of
Mr. Perkins not following [the] Court’s order but doing so in a way that does increase his
risk,” which “escalate[s] his conduct and deteriorate[s] his mental health behavior.” Id. at
134. The government forecasted a further decline if Mr. Perkins was “going to be
discharged” from Fern Terrace, “potentially [become] homeless” and lack “the medications
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. . . he needs.” Id. at 131. Absent revocation, the government feared Mr. Perkins would
regress to his 2009 status. Id. at 135. Mr. Perkins spoke and continued to deny the alleged
violations. See id. at 135–37.
After hearing argument, the district court -- a judicial officer deeply experienced in
the subject matter -- expressed misgivings about the criteria governing revocation:
This is a very new area for the Court to get into. In the past, I had felt
— and I guess I still do — that violation of the order of conditional release
is in itself a qualification for — a reason for revocation of conditional release
and recommitting the respondent to the custody of the Attorney General.
I really don’t — and I hope the Fourth Circuit will amplify what it
meant by having to find these additional requirements.
Id. at 138–39. These uncertainties were immediately followed by the district court’s ruling
on remand:
I find as a fact that [Perkins] has violated the terms and conditions of his
conditional release by violating condition No. 3 in that he left the facility and
went elsewhere without permission of the people at the facility; that he is
violating condition No. 4 because he has failed to participate in the GPS
location monitoring system as required; that he violated condition No. 6 in
that he has refused to see his psychiatrist; and that he has violated condition
No. 7 in that he has not taken all of his medications as required; and that he
has violated condition No. 15 by traveling outside of the divisional district
without the prior approval of the probation officer.
Now all of those things together I feel constitute reasons why this
Court should find him in violation of his conditional release plan.
Id. at 139. The district court continued:
An implicit part of the commitment — and I think I’ve had some cases
before where I revoked the conditional release because the committee was
declared persona non gratis by the facility in which he was staying, which
isn’t to say that this Court doesn’t believe that Mr. Perkins is not ready for
conditional release again. He may very well be, and I hope he is. And I
always tell the committees that when I revoke their commitment, and send
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them back to the facility from which they came, that I hope and have every
confidence that the mental health authorities at that facility are going to be
working on and will soon submit to me another plan of conditional release.
Id. at 140.
The district court then found “the violations heretofore set out depicting the conduct
of the defendant during his release would create a substantial risk of bodily injury to
another person or serious damage to the property of another.” Id. at 141. Mr. Perkins was
then recommitted to the custody of the Attorney General. Id. at 141–42, 145–46. On July
13, 2020, he noticed this appeal. Id. at 147.
II.
We review the district court’s factual findings for clear error and its legal
conclusions de novo. See United States v. Cox, 964 F.2d 1431, 1433 (4th Cir. 1992) (“The
trial court’s ruling denying [the committed person’s] unconditional release . . . is a factual
determination that will be overturned by this court only if clearly erroneous.”); United
States v. Hall, 664 F.3d 456, 462 (4th Cir. 2012) (“On appeal, we review the district court’s
factual findings for clear error and its legal conclusions de novo.”).
III.
Our two recent decisions in United States v. Curbow, 16 F.4th 92, 95 (4th Cir. 2021)
and United States v. Wayda, 966 F.3d 294, 296 (4th Cir. 2020), discuss the statutory
sections found in Chapter 313 of Title 18 dealing with “Offenders with Mental Disease or
Defect.” 18 U.S.C. § 4241-4248. Our focus is much narrower, dealing exclusively with
§ 4246. We thus lean on the § 4246 statutory explanations found in Curbow and Wayda.
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Section 4246 addresses three types of inmates, namely, (1) those in federal custody
for whom a sentence is about to expire, (2) those over whom the Attorney General has
custody as a result of their inability to stand trial due to a mental disease or defect, and (3)
those against whom all criminal charges have been dismissed due or related to their mental
disease or defect. 18 U.S.C. § 4246(a); Curbow, 16 F.4th at 96. As noted in Wayda:
Section 4246 . . . govern[s] the federal process for civil commitment of
particular persons in the government’s custody whose mental condition
renders them a potential threat. Section 4246 has long provided a procedure
for commitment of an individual who “is presently suffering from a mental
disease or defect as a result of which his release would create a substantial
risk of bodily injury to another person or serious damage to property of
another.”
Wayda, 966 F.3d at 297 (quoting 18 U.S.C. § 4246(a)).
The statute permits the director of a facility to certify an inmate housed there as
“presently suffering from a mental disease or defect as a result of which his release would
create a substantial risk of bodily injury to another person or serious damage to property of
another . . . [(‘the dangerousness certification’)].” 18 U.S.C. § 4246(a); Curbow, 16 F.4th
at 95–96. Importantly, the dangerousness certification must be preceded by the facility
director’s finding “that suitable arrangements for State custody and care of the person are
not available.” 18 U.S.C. § 4246(a).
The dangerousness certification triggers a hearing. 18 U.S.C. § 4246(a); Curbow,
16 F.4th at 96. The inmate is entitled to appointed counsel, the right to confront and cross
examine adverse witnesses, and an opportunity to present evidence, including his own
testimony and that of subpoenaed witnesses. 18 U.S.C. §§ 4246(a), 4247(d).
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The district court is authorized to “order that a psychiatric or psychological
examination of the defendant be conducted.” Curbow, 16 F.4th at 97. A report of that
examination is then filed in accordance with the provisions of § 4247(b) and (c). Id. Section
4247(b) permits the defendant to select an additional examiner of her choosing. And
§ 4247(c) sets forth a nonexclusive list of background and diagnostic findings to be
addressed in the report. These include (1) the subject’s history and present symptoms, (2)
the tests administered and the results obtained, (3) the findings, and (4) the diagnosis,
prognosis, and the central opinion respecting whether the subject is dangerous as defined
in the statute. 18 U.S.C. § 4247(c)(1)-(4).
Following receipt of the examination report(s), the hearing convenes. Subsections
(d) and (e) of § 4246 respectively set forth (1) the process for adjudicating and placing the
subject, if warranted, and (2) later discharging him from custody. Section 4246(d) provides
as follows:
If, after the hearing, the court finds by clear and convincing evidence that the
person is presently suffering from a mental disease or defect as a result of
which his release would create a substantial risk of bodily injury to another
person or serious damage to property of another, the court shall commit the
person to the custody of the Attorney General [(“the dangerousness
adjudication”)].
18 U.S.C. § 4246(d) (emphasis added). The initial dangerousness adjudication is thus
subject to the clear and convincing proof standard.
Section 4246(e) governs the potential discharge of the individual earlier committed
under § 4246(d). The provision states pertinently as follows:
(e) Discharge.--When the director of the facility in which a person is
hospitalized pursuant to subsection (d) determines that the person has
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recovered from his mental disease or defect to such an extent that his release
would no longer create a substantial risk of bodily injury to another person
or serious damage to property of another, he shall promptly file a certificate
to that effect with the clerk of the court that ordered the commitment. The
clerk shall send a copy of the certificate to the person’s counsel and to the
attorney for the Government. The court shall order the discharge of the
person or, on the motion of the attorney for the Government or on its own
motion, shall hold a hearing, conducted pursuant to the provisions of section
4247(d), to determine whether he should be released. If, after the hearing, the
court finds by a preponderance of the evidence that the person has recovered
from his mental disease or defect [(“the recovery adjudication”)] to such an
extent that--
(1) his release would no longer create a substantial risk of bodily
injury to another person or serious damage to property of another,
the court shall order that he be immediately discharged; or
(2) his conditional release under a prescribed regimen of medical,
psychiatric, or psychological care or treatment would no longer
create a substantial risk of bodily injury to another person or serious
damage to property of another, the court shall--
(A) order that he be conditionally discharged under a
prescribed regimen of medical, psychiatric, or psychological
care or treatment that has been prepared for him, that has been
certified to the court as appropriate by the director of the
facility in which he is committed, and that has been found by
the court to be appropriate; and
(B) order, as an explicit condition of release, that he comply
with the prescribed regimen of medical, psychiatric, or
psychological care or treatment.
The court at any time may, after a hearing employing the same criteria,
modify or eliminate the regimen of medical, psychiatric, or psychological
care or treatment.
18 U.S.C. § 4246(e). The recovery adjudication is thus subject to a preponderance of the
evidence standard.
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The next step -- and the subsection at the center of this appeal -- is found in § 4246(f)
dealing with “[r]evocation of conditional discharge.” The subsection provides as follows:
(f) Revocation of conditional discharge.--The director of a medical facility
responsible for administering a regimen imposed on a person conditionally
discharged under subsection (e) shall notify the Attorney General and the
court having jurisdiction over the person of any failure of the person to
comply with the regimen. Upon such notice, or upon other probable cause to
believe that the person has failed to comply with the prescribed regimen of
medical, psychiatric, or psychological care or treatment, the person may be
arrested, and, upon arrest, shall be taken without unnecessary delay before
the court having jurisdiction over him. The court shall, after a hearing,
determine whether the person should be remanded to a suitable facility on
the ground that, in light of his failure to comply with the prescribed regimen
of medical, psychiatric, or psychological care or treatment, his continued
release would create a substantial risk of bodily injury to another person or
serious damage to property of another [(“the revocation adjudication”)].
18 U.S.C.A. § 4246(f). 2 The revocation adjudication mentions no proof standard, unlike
subjections 4246(d) and 4246(e) immediately preceding it.
IV.
Before proceeding to the analysis, we deem it useful to provide some context. There
is a considerable history giving rise to the current federal civil commitment process. Some
of it is important for resolving both questions before us.
A. The Origins of Offender Mental Health Treatment in the United States
In 1773 -- in part to stem then-inexplicable, and even criminal, behavior by some -
- the first facility for the mentally ill opened in Williamsburg, Virginia. The Public Hospital
2
Section 4246(f) is materially identical to 18 U.S.C. § 4243(g), a provision dealing
with revocation of conditional discharge for hospitalized persons found not guilty by
reason of insanity.
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for Persons of Insane and Disordered Minds 3 (“Public Hospital”) was -- as put by the Earl
of Dunmore, then-colonial Governor of Virginia -- devoted to “‘a poor unhappy set of
people who are deprived of their senses and wander about the countryside, terrifying the
rest of their fellow creatures.’” Michael Toren, Shuttered: An Examination of How the 2013
Chicago Public School Closings Are Denying Special Education Students the Right to an
Appropriate Public Education, 35 N. Ill. U. L. Rev. 231, 235 (2014) (citation omitted); see
Paul S. Appelbaum, A History of Civil Commitment and Related Reforms in the United
States: Lessons for Today, 25 Dev. Mental Health L. 13, 13 (2006) (“By the end of the
Colonial Period and into the early years of the Republic, jails and almshouses were filled
with people with mental illness.”).
The only facility of its kind until 1824, the Public Hospital consisted of “dungeon-
like cells” and “torturous . . . treatment.” Toren, supra, at 235. The Public Hospital and its
methods -- with the comparatively brief, humanitarian interregnum represented by
Benjamin Rush’s “Moral Treatment” movement -- were the standard fare through the mid-
1800s. Id. (noting that after the Civil War “Patient care reverted to pre-Revolutionary War
3
The use of the word “insane” and similar pejorative references is understandably
discouraged. See, e.g., AP Style Book (“Do not use derogatory terms, such as insane,
crazy/crazed, nuts or deranged, unless they are part of a quotation that is essential to the
story.”). We regret the necessity of resurfacing these justifiably long-abandoned,
objectionable terms. It is necessary, in part, however, to demonstrate that as the science
related to the subject conditions has matured, so too hopefully has the surrounding rhetoric
and perception. It is also necessary to aid an appreciation of sociolegal developments and
the statutory context. We have confronted similar concerns about outmoded parlance
recently. See Miranda v. Garland, 34 F.4th 338, 345 n.1 (4th Cir. 2022) (“Our use of the
term ‘alien’ is not intended to express any opinion, pejorative or otherwise, about the
plaintiffs in this action or others challenging their detention under our immigration laws.”).
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conditions”); Stacey A. Tovino, Psychiatric Restraint and Seclusion: Resisting Legislative
Solution, 47 Santa Clara L. Rev. 511, 520 (2007); Destiny Howell, The Unintended
Consequences of Deinstitutionalization, 54 Am. Crim. L. Rev. Online 17, 18 (2017).
In 1841, however, the legendary Dorothea Dix “began a crusade to reform the
treatment of mentally ill inmates after witnessing firsthand the abhorrent care those
individuals received.” Robert Rigg, Are There No Prisons: Mental Health and the Criminal
Justice System in the United States, 4 U. Denv. Crim. L. Rev. 103, 103–04 (2014). By
1880, Ms. Dix had proven instrumental in establishing “32 mental hospitals” in various
states, a near ten-fold increase in such facilities existing when her work commenced. Id. at
104; see Adam Klein & Benjamin Wittes, Preventive Detention in American Theory and
Practice, 2 Harv. Nat’l Sec. J. 85, 158 (2011) (“The ensuing conclusion that confinement
in newly constructed asylums would be a salutary policy benefiting the mentally ill was
propagated by, among others, the humanitarian campaigner Dorothea Dix.”); Death of
Dorothea Dix, Biddeford Daily J., July 20, 1887, at 1 (noting “[s]he was instrumental in
having the asylum founded . . . throughout the country. . . . [and] in 1854 a bill was passed
granting 10,000,000 acres for the purpose but the measure was vetoed by President
Pierce.”); Reuben L. Lurie, Massachusetts Commissioner of Corrections, Diamond Jubilee
Meeting of the American Bar Association at the Harvard Club of Boston, Today’s
Problems in the Administration of Criminal Justice, 15 F.R.D. 65, 80 (Aug. 26, 1953)
(“The result was that there was a reform in the treatment not alone of prisoners, but also of
the insane in Massachusetts, and then Dorothea Dix began the same trek. She went into
Rhode Island. She went into New York. She went into New Jersey, and finally she had
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traversed twenty-two states in the Union. She memorialized the Congress. She went to
Europe. She brought about lasting reforms in England, in France, in Italy, in Turkey, and
in Russia.”). 4
Ultimately, however, the well-intended asylum facilities became overcrowded and
inadequately funded; they too soon began to resemble a more modernized version of the
pre-Revolutionary War conditions instead of the therapeutic sanctuaries envisioned by Ms.
Dix and her devotees. See Howell, supra, at 18–19 (“Asylums workers had less time to
attend to individual patients and the facilities required more upkeep. . . . From the 1900’s
to the 1940’s, forced sterilization, lobotomization, and electroshock therapy all emerged as
acceptable treatment options for the mentally ill.”). Additionally, “[t]he inpatient
population of mental hospitals in the United States grew from 187,000 in 1910 to 425,000
in 1940, demonstrating the ‘pervasive . . . faith in an institutional policy’ of mental illness
control.” See Klein & Wittes, supra, at 160 (quoting Gerald N. Grob, The Mad Among Us:
A History of the Care of America’s Mentally Ill 167 (1994)).
B. Deinstitutionalization and Congressional Action After World War II
4
Ms. Dix’s desire for a federal facility for mentally ill inmates ultimately
materialized with an Act of Congress in 1930. The law authorized the Attorney General,
inter alia, to select a site and report to Congress the cost of acquisition or construction. An
Act To Establish a Hospital for Defective Delinquents (“Hospital Act”), ch. 254, 46 Stat.
270 (1930) (codified as amended at 18 U.S.C. §§ 871–880 in United States House of
Representatives, Committee on Revision of the Laws, The Code of the Laws of the United
States of America (1933)). As authorized by the Hospital Act, the United States Medical
Center for Federal Prisoners (“MCFP”) was constructed in the early 1930s on land donated
by Springfield, Missouri. As noted within, the facility remains in service as MCFP
Springfield. Springfield-Greene County Library District, Historical Postcards of
Springfield, Missouri (Feb. 6, 2022), https://thelibrary.org/lochist/postcards/index.cfm.
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In the years following World War II, the Nation began to reckon with the troubling
civil commitment process. Pop culture helped produce the tipping point. A 1946 book
entitled The Snake Pit by Mary Jane Ward and Albert Deutsch’s watershed work The
Shame of the States were “cultural touchstones” painting exceptionally dark portraits of
institutionalization. Blake Erickson, Deinstitutionalization Through Optimism: The
Community Mental Health Act of 1963, 16 Am. J. of Psych. Residents’ J. 6, 6 (2021).
Perhaps the most influential and far-reaching piece was a 1946 article in Life magazine --
the most widely read news periodical of the day -- which said this: “mental institutions in
almost every state . . . . [t]hrough public neglect and legislative penny-pinching, . . . ha[ve]
allowed . . . [their] institutions for the care and cure of the mentally sick to degenerate” to
deplorable levels. Albert Q. Maisel, Bedlam 1946: Most U.S. Mental Hospitals Are a
Shame and a Disgrace, Life, May 6, 1946, at 102.
This intense scrutiny produced seismic developments and resulted in an increasingly
rapid movement toward “deinstitutionalization”: 5
These revelations shocked the public and undermined confidence in asylums.
The passage of the 1963 federal Community Mental Health Centers Act,
which funded outpatient treatment, the deinstitutionalization movement, and
the development of psychotropic medications all reduced the inpatient
population in mental hospitals and shifted public policy away from confining
those who could be safely treated in freedom.
5
“Deinstitutionalization refers to the set of policies and treatment innovations
driving the half-million-person decrease in the mental hospital population between 1955
and the present.” Steven Raphael & Michael A. Stoll, Assessing the Contribution of the
Deinstitutionalization of the Mentally Ill to Growth in the U.S. Incarceration Rate, 42 J.
Legal Studs. 187, 190 (2013).
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Klein & Wittes, supra, at 160. 6
The federal sovereign was at the tip of the spear respecting progress toward civil
commitment reform and deinstitutionalization. For example, in 1946 President Harry
Truman signed the National Mental Health Act (“NMHA”), Pub. L. No. 79-487, 60 Stat.
421 (1946). The social context for, and contents of, the NMHA are discussed in a then-
contemporary piece from the Yale Law Journal:
INCREASING psychiatric understanding of the nature of mental disease has
brought to light the vast scope of the mental health problem. Mental patients
now occupy over one half of the hospital beds in the country. In addition to
about 600,000 institutionalized cases, it is estimated that at least 8,000,000
of our population suffer from some sort of mental disease. Total annual cost
of mental illness, including loss in earning power, amounts to over a billion
dollars a year. Pointing up sharply the extent of the drain on national
resources by mental disease is the fact that neuropsychiatric disorder was the
largest single cause of draft rejections and the cause of forty-one percent of
all Army medical discharges.
The critical nature of the problem suggested by these statistics has been
recognized by the unanimous passage of the [NMHA] on July 3, 1946. This
Act gives authority to the Public Health Service to extend its administration
of research, grants-in-aid and fellowships to the field of mental illness and
authorizes the establishment of a National Institute of Mental Health along
the lines of the National Cancer Institute. It is expected, however, that only
those mental patients treated by personnel connected with teaching and
research projects will be affected by federal expenditures. Mental health
administration is primarily a state responsibility, and the legal procedure
involved in the commitment and release of mental patients is, therefore, a
subject of state legislation.
6
Psychotropic medications contributed heavily to deinstitutionalization. E. Fuller
Torrey, Out of the Shadows: Confronting America's Mental Illness Crisis loc. 141 (1997)
(ebook) (“Deinstitutionalization began in 1955 with the widespread introduction of
chlorpromazine, commonly known as Thorazine, the first effective antipsychotic
medication, and received a major impetus 10 years later with the enactment of federal
Medicaid and Medicare.”).
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Note, Analysis of Legal and Medical Considerations in Commitment of the Mentally Ill,
56 Yale L.J. 1178, 1178–80 (1947).
C. The Judiciary’s Role in Modernizing Federal Offender Civil Commitment
The Judiciary was likewise poised for action during this period. And its efforts
represented the first steps toward the statutory civil commitment scheme now found in
Chapter 313 of Title 18. On September 29, 1942, the Judicial Conference of the United
States (“Conference”) convened. Judicial Conference, Report of the Proceedings of the
Judicial Conference of the United States 1 (Sept. 29, 1942) (“1942 Report”). The
Conference “authorized the Chief Justice to appoint a committee to study, in cooperation
with the Attorney General, the treatment accorded by the federal courts to insane persons
charged with crime.” Id. at 18. The “Committee of the Conference on the Treatment of
Insane Persons Charged with Crime in the Federal Courts” (“Committee”) was formed two
years later. Judicial Conference, Report of the Proceedings of the Judicial Conference of
the United States 3 (Sept. 26, 1944) (“1944 Report”). The Committee membership included
the Honorable Learned Hand, then serving as a Senior Circuit Judge on the United States
Court of Appeals for the Second Circuit. 1942 Report at 19.
At the Judicial Conference’s September 28, 1943, meeting, the Attorney General
noted the continuing importance of the Committee’s work, emphasizing “that of 4,600
persons convicted under the Selective Training and Service Act[,] 200 were found to be of
unsound mind.” Judicial Conference, Report of the Proceedings of the Judicial Conference
of the United States 3 (Sept. 28, 1943) (“1943 Report”). He further “emphasized the
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desirability of probation officers giving careful attention to the defendant’s mental
condition.” Id.
In 1944, the Committee submitted an interim report, of which the Attorney General
“expressed general approval.” 1944 Report at 3. In response, at its September 26, 1944,
meeting, the Judicial Conference adopted the following resolution:
It appearing from a study by the Bureau of Prisons that a considerable
number of persons are being sentenced for federal offenses and sent to prison
who, because of their insanity, should not have been convicted, and who,
indeed, because of their mental incapacity to participate rationally in their
defense, should never have been arraigned or brought to trial, Resolved, that
the Conference recommend:
(1) That the district courts make fuller use of the sum provided in the
annual appropriation for psychiatric examinations in occasional
criminal cases at the instance of the court, for the purpose of
procuring a competent and impartial psychiatric examination of
accused persons brought before the court, where from the report of
the probation officer or from other indications there is reason to
believe that the accused may be mentally unsound;
(2) That wherever possible, arrangements should be made with
suitable local hospitals and other institutions and agencies whereby
in the discretion of the district courts persons charged with crime
may be sent temporarily to such institutions for observation and
examination as to their mental condition, as is now done in some
districts; and further that the Administrative Office be requested to
survey the possibilities of this procedure in the various districts, and
if agreeable to the respective district courts to arrange with the
officials of local institutions for the use of their facilities for the
examination of the mental soundness of persons charged with crime;
that for this purpose the Administrative Office be authorized to use
the services of the probation officers of the various districts.
Id. at 18. The Conference focused the continued work of the Committee on the following:
“(1) psychiatric examinations as a matter of course in a class of cases, to be determined, in
which the offenders are most apt to be insane; (2) a procedure in other cases for determining
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before trial the sanity of an accused person; and (3) the protection of courts from insane
litigants and a suitable procedure for dealing with such persons.” Id. at 19.
In 1945, the Attorney General reported to the Conference that “legislation for
dealing with mentally afflicted defendants in criminal cases was in the process of
preparation in cooperation with the committee of the Judicial Conference on the Treatment
of Insane Persons Charged with Crime in the Federal Courts.” Judicial Conference, Report
of the Proceedings of the Judicial Conference of the United States 3 (Sept. 25, 1945) (“1945
Report”). At that same meeting, the Committee submitted, and the Conference approved,
its report on the subject assigned:
The committee presented a revised draft of a bill, prepared in 1944, dealing
with cases where insanity occurs after conviction, and with cases of insane
persons whose sentences have expired. But the committee did not give its
final approval to the draft in its present form, suggesting that it be circulated
among the circuit and district judges so that their suggestions may be
considered. The bill . . . provides a procedure for . . . where mental
incompetency becomes apparent after the defendant has been committed to
prison. Further, the bill makes provision for the commitment of any insane
prisoner whose sentence is about to expire and whose release might endanger
‘the safety of the officers, currency, domain or other interests of the United
States.’
Id. at 19.
In 1946, the Committee produced draft legislation. On October 1, 1946, the
Conference approved it, with certain amendments, and produced the draft of a bill that
provided “for the commitment to the Attorney General, upon a judicial proceeding and
after a hearing, of any insane prisoner whose sentence is about to expire and whose release
might endanger the safety of the officers, the property, or other interests of the United
States.” Judicial Conference, Report of the Proceedings of the Judicial Conference of the
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United States 18 (Oct. 1, 1946) (“1946 Report”). On September 25, 1947, the Conference
“reaffirmed” its recommendation of the draft legislation to Congress. Judicial Conference,
Report of the Proceedings of the Judicial Conference of the United States 18 (Sept. 25,
1947) (“1947 Report”).
Reform came in two separate enactments occurring in 1948 (“1948 Enactment”)
and 1949 (“1949 Enactment”). The 1948 Enactment was codified at Sections 4241 through
4243. Pub. L. No. 80-772, 62 Stat. 855 (1948) (codified as amended at 18 U.S.C. §§ 4241-
4243). 7 These sections provided respectively for (1) a board of examiners at each federal
correctional institution to examine mentally ill inmates and report them to the Attorney
General, who was then authorized to remove the inmate to a federal mental hospital
(§ 4241), (2) transfer of recovered hospitalized inmates to a federal correctional institution
following their recovery (§ 4242), and (3) transfer of non-recovered, released inmates from
the federal hospital to “the proper authorities” where the inmate resided (§ 4243). This
theme of desired state involvement permeates the history of -- and current law governing -
- federal civil commitment.
The 1949 Enactment consisted of five sections contained in the Conference’s draft
legislation -- sections 4244 through 4248 -- which failed initially to secure Congressional
approval. In September 1948, the Attorney General explained as follows:
I was disappointed, as I know you were, because of the failure of enactment
of the bill to provide for the care and custody of insane persons charged with
7
As explained within, the codified §§ 4241 through 4248 correspond numerically,
but not substantively, with their amended versions that followed decades later and remain
in force presently.
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or convicted of offenses against the United States. The Department of Justice
has worked in close harmony with Judge [Calvert] Magruder and other
members of his committee in behalf of this much needed legislation. The bill
was actually passed by the Senate on June 10, 1948, and was referred to the
Judiciary Committee of the House on the following day. It made no further
progress toward enactment, however. Recommendations should be renewed
at the next session of Congress for the speedy enactment of this bill.
Judicial Conference, Report of the Proceedings of the Judicial Conference of the United
States 13 (Sept. 27, 1948) (“1948 Report”). The Judicial Conference again “reaffirmed its
interest in [the] legislation . . . and approved the bill which passed the Senate (S. 850) on
June 10, 1948.” Id. at 41.
On September 7, 1949, Congress passed the 1949 Enactment. Pub. L. No. 81-285,
63 Stat. 686 (1949) (codified as amended at 18 U.S.C. § 4244-4248). The 1949 Enactment
thus added §§ 4244 through 4248 to §§ 4241 through 4243 resulting from the 1948 Act.
The material portions of §§ 4246, 4247 and 4248 -- the root system from which the
current § 4246 sprung -- are set out below:
[Former 18 U.S.C. § 4246] Whenever the trial court shall determine in
accordance with sections 4244 and 4245 of this title that an accused is or was
mentally incompetent, the court may commit the accused to the custody of
the Attorney General or his authorized representative, until the accused shall
be mentally competent to stand trial or until the pending charges against him
are disposed of according to law. And if the court after hearing as provided
in the preceding sections 4244 and 4245 shall determine that the conditions
specified in the following section 4247 exist, the commitment shall be
governed by section 4248 as herein provided.
[Former 18 U.S.C. § 4247] Whenever the Director of the Bureau of Prisons
shall certify that a prisoner whose sentence is about to expire has been
examined by the board of examiners referred to in title 18, United States
Code, section 4241, and that in the judgment of the Director and the board of
examiners the prisoner is insane or mentally incompetent, and that if released
he will probably endanger the safety of the officers, the property, or other
interests of the United States, and that suitable arrangements for the custody
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and care of the prisoner are not otherwise available, the Attorney General
shall transmit the certificate to the clerk of the court for the district in which
the prisoner is confined. Whereupon the court shall cause the prisoner to be
examined by a qualified psychiatrist designated by the court and one selected
by the prisoner, and shall, after notice, hold a hearing to determine whether
the conditions specified above exist. At such hearing the designated
psychiatrist or psychiatrists shall submit his or their reports, and the report of
the board of examiners and other institutional records relating to the
prisoner’s mental condition shall be admissible in evidence. All of the
psychiatrists and members of the board who have examined the prisoner may
be called as witnesses, and be available for further questioning by the court
and cross-examination by the prisoner or on behalf of the Government. At
such hearing the court may in its discretion call any other witnesses for the
prisoner. If upon such hearing the court shall determine that the conditions
specified above exist, the court may commit the prisoner to the custody of
the Attorney General, or his authorized representative.
[Former 18 U.S.C. § 4248] Whenever a person shall be committed pursuant
to section 4247 of this title [addressing the situation of an inmate whose
sentence was nearly expired], his commitment shall run until the sanity or
mental competency of the person shall be restored or until the mental
condition of the person is so improved that if he be released he will not
endanger the safety of the officers, the property, or other interests of the
United States, or until suitable arrangements have been made for the custody
and care of the prisoner by the State of his residence, whichever event shall
first occur. Whereupon the Attorney General or his authorized representative
shall file with the court which made said commitment a certificate stating the
termination of the commitment and the ground therefor . . . . The Attorney
General or his authorized representative shall have authority at any time to
transfer a prisoner committed to his custody under the authority of section
4246 or section 4247 hereof to the proper authorities of the State of his
residence.
D. Transinstitutionalization, the Shift to Dangerousness as the Criterion for
Commitment and the Beginnings of Federal Civil Commitment Reform
Following the federal lead represented by the NMHA, and later the 1963
Community Mental Health Act, Pub. L. No. 88-164, 77 Stat. 282 (1963), “most states
changed their involuntary-commitment statutes to require that an individual be a danger to
him or herself and/or to others, with varying evidentiary requirements, rendering
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involuntary commitment considerably more difficult.” Steven Raphael & Michael A. Stoll,
Assessing the Contribution of the Deinstitutionalization of the Mentally Ill to Growth in
the U.S. Incarceration Rate, 42 J. Legal Studs. 187, 191 (2013) (citations omitted). A
troubling phenomenon developed in the decades that followed. Incarceration rates for the
mentally ill increased markedly:
Many factors have contributed to the modern mass incarceration of people
with mental illness. A leading explanation is “transinstitutionalization”: the
downsizing and closure of state mental hospitals known as
deinstitutionalization, coupled with patient reinstitutionalization in jails and
prisons--in other words, shifting the mentally ill from one institution to
another. There is clearly some truth to this explanation.
Fredrick E. Vars & Shelby B. Calambokidis, From Hospitals to Prisons: A New
Explanation, 102 Cornell L. Rev. Online 101, 103–04 (2017); see Paul F. Stavis, Why
Prisons Are Brim-Full of the Mentally Ill: Is Their Incarceration a Solution or a Sign of
Failure?, 11 Geo. Mason U. Civ. Rts. L.J. 157, 157–58 (2000) (“During the last half of the
twentieth century their essential needs for care and treatment have been deficient or in
many cases, totally ignored. In this sense, ‘transinstitutionalization’ has become the
inevitable subsequent phase of forty years of a policy known as ‘deinstitutionalization,’
i.e., the massive, nationwide closing of psychiatric hospitals and discharging of their
patients. The apparent inverse relationship between the availability of hospital treatment
and the increasing population of mentally ill prisoners was noticed more than a half century
ago.”).
State mental institutions experienced a 71 percent decrease in patient population
from 1965 to 1980. Joseph P. Morrissey & Howard H. Goldman, Care and Treatment of
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the Mentally Ill in the United States: Historical Developments and Reforms, 484 Annals of
the American Academy of Political and Social Science 12, 22 (1986). The authors
additionally observed as follows:
Tens of thousands ended up in rooming houses, foster homes, nursing homes,
run-down hotels, and on the streets. The transfer of patients from the “back
wards to the back alleys” led to widespread concerns that
deinstitutionalization was a disaster and that the states had abdicated their
responsibilities to the mentally ill.
Id.These conditions may have been a catalyst for the eventual Congressional reform of
the federal civil commitment process beginning in the 1970s and culminating in the
enactment of the Comprehensive Crime Control Act of 1984. Pub. L. 98–473, 98 Stat. 1976(Oct. 12, 1984) (“the 1984 CCCA”). As discussed within, the 1984 CCCA amended the
1948 and 1949 Enactments to (1) more fully address federal inmates afflicted with a mental
illness and, for the first time, (2) create a process for their conditional discharge, outpatient
treatment, monitoring, and potential re-institutionalization.
E. Modernization of the Federal Civil Commitment Process from 1965 to 1983
and the 1984 CCCA
The roots of the 1984 CCCA reach deep. 8 The 22-year saga leading to enactment
began in 1966, when President Lyndon B. Johnson urged Congress to create a commission
8
Much of the historical discussion that follows covers proceedings in the Senate
leading to the 1984 CCCA. One author observes as follows:
The [federal criminal] code reform movement did not receive the same
degree of attention in the House of Representatives . . . [as] in the Senate. . .
. The House Judiciary Committee had . . . less staff support . . . , more of an
(Continued)
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to “modernize our criminal laws.” Message from the President, 112 Cong. Rec. 5368, 5370
(1966). Congress acted swiftly, creating the National Commission on Reform of Criminal
Laws (“Reform Commission”). An Act to Establish a National Commission on Reform of
Federal Criminal Laws, Pub. L. No. 89-801, 80 Stat. 1516 (1966). Prior to the Reform
Commission completing its work, the legislative foundations were already being laid for
the 1984 CCCA with a three-page, January 16, 1969, proposal introduced by Senator
Robert C. Byrd to deny bail to certain individuals charged with crimes of violence. S. 289,
91st Cong. (1969).
The first appearance of significant, proposed amendments to 18 U.S.C. §§ 4241through 4248 came from Senators John McClellan, Sam Ervin, and Roman Hruska. S.1,
93rd Cong. (1973). Senate Bill 1 arrived on the heels of the study and hearings following
the Reform Commission’s 1971 report. The measure was the first effort to develop a
modern federal civil commitment process for mentally ill inmates.
arms-length relationship with the [DOJ], . . . and . . . a recent history of
following, rather than preceding, the Senate on criminal justice initiatives.
Ronald L. Gainer, Federal Criminal Code Reform: Past and Future, 2 Buff. Crim. L. Rev.
45, 124 (1998). Mr. Gainer was well positioned in the criminal code reform process. His
article has been widely cited over the decades. See, e.g., Jessica A. Roth, Rehaif v. United
States: Once Again, A Gun Case Makes Surprising Law, 32 Fed. Sent. R. 23, 25 n.38
(2019); Kathleen F. Brickey, Federal Criminal Code Reform: Hidden Costs, Illusory
Benefits, 2 Buff. Crim. L. Rev. 161, 189 (1998) (noting Mr. Gainer was “a senior official
in the [DOJ] for many years [between 1963 to 1989], was heavily involved in criminal law
reform and supervised the Department’s effort to have a new federal criminal code
enacted”).
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Missing from those proposed amendments, however, was the conditional discharge
and revocation process now found in 18 U.S.C. § 4146(e) and (f). The prospect of
“probation” for mentally ill inmates first appeared in a later bill introduced by Senators
McClellan and Hruska. S. 1400, 93rd Cong. § 4224(e) (1973). The alternative sentence
would have been available to the district court for individuals who developed a mental
illness following their conviction and imprisonment in a federal correctional institution. Id.
(providing that when a hospitalized and convicted defendant recovered from his mental
illness, the district court would hold a hearing to determine whether the defendant’s term
of imprisonment should be reduced or, among other options, result in the defendant being
placed “on probation pursuant to” the Bill’s chapter dealing with a sentence of probation
generally).
The magnitude of the wholesale criminal code reform, along with the Watergate
controversy, slowed the legislative process throughout the mid-1970s. See generally
Ronald L. Gainer, Federal Criminal Code Reform: Past and Future, 2 Buff. Crim. L. Rev.
45, 114 (1998) (“The Watergate issues diverted so much attention from the code reform
effort, as well as from other subjects, that they eventually mooted ongoing consideration
of the code.”).
Later in the 1970s, however, a comprehensive reconstruction of the federal criminal
code, and civil commitment reform, again gained steam. And toward the end of the decade,
the conditional discharge and discharge scheme took shape, albeit from a very unlikely
source, and in a very unlikely way. In sum, the process found its genesis and development
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not in a congressional study, commission, or testimony by correctional or mental health
experts; it was instead spearheaded by a single concerned and aggrieved citizen.
In May 1978, R. Dennis Bevans’ brother James “was forced off the road and
murdered brutally by a person who had been a mental patient in two facilities . . . and had
. . . a history of mental problems.” Reform of the Federal Criminal Laws: Hearings on S.
1722 and S. 1723 Before the S. Comm. on the Judiciary, 96th Cong. 10057-58 (1979)
(statement of R. Dennis Bevans). Mr. Bevans was determined to push reforms that would
forestall a recurrence of the tragedy his family suffered.
He became acquainted in early 1979 with a woman who lived down the hall in his
apartment building. She worked for Senator Theodore “Ted” Kennedy, then-Chairman of
the Senate Committee on the Judiciary (“Judiciary Committee”). R. Dennis Bevans, Fast
Track Bureaucrat 371 (2008). The acquaintance told Mr. Bevans whom he should contact
in Senator Kennedy’s office. Id. On February 1, 1979, Mr. Bevans wrote Senator Kennedy
and described the tragic May 9, 1978, event involving his brother. Reform of the Federal
Criminal Laws: Hearings on S. 1722 and S. 1723 Before the S. Comm. on the Judiciary,
96th Cong. 10067-68 (1979) (letter from R. Dennis Bevans to Hon. Edward M. Kennedy).
The perpetrator, Gerald Fox, had been previously hospitalized pending his competency
restoration. Id. at 10067. He was ultimately deemed not criminally responsible in view of
his mental illness. Id.
While remarkably sympathetic to Mr. Fox’s condition, Mr. Bevans simultaneously
decried the fact that no “[p]ost release supervision” existed in federal law for individuals
like Mr. Fox. Id. He noted additionally in the letter:
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[Mr.] Fox had been diagnosed as a paranoid schizophrenic with homicidal
and suicidal tendencies . . . and had been institutionalized twice. Only two
months prior to the murder of my brother, he had left a mental institution,
promising to take the tranquilizing drugs that keep his condition stable.
Instead, he promptly discontinued taking the drugs, and his condition
progressively worsened. The evening before the murder (May 8, 1978), he
blew a hole in the wall of his apartment with a shotgun--but no one was
around to report it. Obviously, if Fox had been required to report regularly
for observation (under penalty of being picked up by the police and returned
to the institution) my brother would still be alive, and his three children
would have their father.
Id. at 10067-68.
Months later, on September 9, 1979, Senators Kennedy, Strom Thurmond, Orrin
Hatch, Dennis DeConcini, and Alan Simpson introduced Senate Bill 1722, entitled the
“Criminal Code Reform Act of 1979” (“1979 CCCA”). The 1979 CCCA contained
provisions materially identical to those in the preceding years dealing with hospitalized
inmates due for release but suffering from a mental disease or defect. S. 1722 (Sept. 7,
1979). When referred that same month to the Judiciary Committee, the Bill yet lacked the
conditional discharge and revocation scheme urged by Mr. Bevans. Following his letter to
Senator Kennedy, however, and after further explaining his views to a Judiciary Committee
staff member, Mr. Bevans was scheduled to testify; remarkably, Judiciary Committee staff
asked for his written legislative proposal. Bevans, supra, at 371. He then “decided to write
. . . [a] version of a man from the moon draft law that simply made sense of an unreasonable,
uncontrolled, and dangerous situation.” Id.
On September 18, 1979, approximately ten days after Senate Bill 1722 was
introduced, Senator Thurmond, then the ranking minority member of the Judiciary
Committee, called Mr. Bevans to testify; Committee Counsel Paul Summitt was in
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attendance. Reform of the Federal Criminal Laws: Hearings on S. 1722 and S. 1723 Before
the S. Comm. on the Judiciary, 96th Cong. 10057-58 (1979) (statement of R. Dennis
Bevans). Mr. Bevans testified, in part, as follows:
I am proposing that the bill you are considering be expanded to
provide for mandatory post-release supervision of individuals such as those
who have murdered and then are involuntarily committed to a mental facility.
I am suggesting that in the current situation, legislation treats the topic
of mental illness in two ways; No. 1, it provides procedurally for the person
who is determined to have been temporarily insane and is expected to
recover, and No. 2, for the person who is chronically mentally ill, but able to
be discharged from a mental hospital with an adequate margin of safety for
society, given the history of the patient and the diagnosis regarding the type
of mental illness.
This adequate margin of safety may include the voluntary taking of
medications for emotional stability, or counseling, or both.
....
What is needed is the discretion for doctors or judges to require, as a
condition of release, that persons they consider potentially dangerous when
not on some form of medication, counseling or both, be required to report
routinely for the treatment they need to insure continued emotional stability.
I believe that Gerald Fox, the murderer, was sick, hallucinating, and
socially dysfunctional when he murdered my brother. I believe in the
procedures and the system that judged and confined him. I am alarmed and
horrified at the system and procedures that may release him without
supervision into our society once again someday . . . and are governing the
release of others right now.
We, the families of the victims of violent crime, have tended to live
quietly within society with our private thoughts, grief, and individual
accommodation to what has happened. But, as our numbers grow, so does
our need to speak out against a system of laws, or lack of them, that permits
the type of horror story that we live with as a family every day.
If you permit my proposed formal language to appear in this bill, that
will be a dramatic first step for the States to follow. Not only will it govern .
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. . Federal crimes along these lines, but it will give the State legislators, many
of whom I have talked to, language to deal with, and the feeling that the feds
recognize the problem and are intending to do something about it.
Reform of the Federal Criminal Laws: Hearings on S. 1722 and S. 1723 Before the S.
Comm. on the Judiciary, 96th Cong. 10057-58, 10061 (1979) (statement of R. Dennis
Bevans) (emphasis added). At the conclusion of Mr. Bevans’ testimony, Senator Thurmond
responded, “[v]ery fine” and engaged in a colloquy concluding with his statement, “I feel
that what you have said will result in the most careful consideration and some action being
taken.” Id.
Accompanied by an extraordinary 1,519-page Report, the Judiciary Committee
transmitted an amended version of Senate Bill 1722 (“1980 Markup”) to the Senate on
January 17, 1980. See, e.g., Criminal Code Reform Act of 1979, Report of the Committee
on the Judiciary, United States Senate, S. Rep. No. 96-553 1115 (1980) (“1980 Report”).
The 1980 Markup and Report, respectively, included two matters of interest presently.
First, the 1980 Markup added proposed subsection 3616(f) to Senate Bill 1722, the
conditional discharge and revocation process urged by Mr. Bevans. This was the first step
toward the conditional discharge and revocation process that emerged years later in the
1984 CCCA and the current version of § 4246(f). 9 Second, the 1980 Report dispels any
9
The Judiciary Committee generally credited Mr. Bevans with the conditional
discharge and revocation process that ultimately became law. 1980 Report at 1114 n. 48
(“The provisions in this section and section 3616 to permit a court to release a person on
condition that he conform to a prescribed regimen of medical care or treatment was
persuasively recommended by R. Dennis Bevans whose family experienced a tragedy that
this provision, if available in the jurisdiction in which the incident occurred, might have
been prevented.”).
(Continued)
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notion that the proof standards (and lack thereof) in what ultimately became § 4246 were
the product of haste or oversight. The 1980 Report demonstrates the Judiciary Committee
focused intensely upon proof standards generally.
For example, the 1980 Report at page 1115 includes the following observation
regarding the related statutory process for hospitalization of a person acquitted by reason
of insanity: “It should be noted that the standard used for determining recovery -- and thus
release -- by a preponderance of the evidence -- is intentionally lower than the standard for
commitment -- upon clear and convincing evidence.” See, e.g., Criminal Code Reform Act
of 1979, Report of the Committee on the Judiciary United States Senate, S. Rep. No. 96-
553 1115 (1980). And in the 1980 Report at page 1123 dealing with the § 3616 (now
§ 4246) subject of “Hospitalization of a person due for release but suffering from a mental
disease or defect,” and the proof standards there found, the following language appears:
“These provisions are similar to those . . . dealing with persons acquitted by reason of
insanity, and the discussion there should be consulted here.” Id. at 1123 (emphasis added).
The emphasized language removes any doubt respecting the Judiciary Committee’s careful
construction of the statutory provision that became § 4246.
Also, as discussed more fully within, the only differences between the subsection
3616(f) added via the 1980 Markup, and the current version of § 4246(f), are (1) the
addition of the words “psychiatric or psychological” immediately following each instance
where the word “medical” appears, and (2) the removal of the word “serious” prior to the
words “bodily injury.”
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Immediately following that clarification in the 1980 Report is a brief discussion of
the newly proposed conditional discharge process advocated by Mr. Bevans, quoting from
his suggested language, and offering other pertinent information:
Subsection (f) provides a procedure for dealing with the situation in which
the released person fails to comply with the prescribed regimen of medical
care or treatment. Under this procedure the director of the medical facility
responsible for administering the regimen imposed under subsection (e) shall
notify the Attorney General and the court having jurisdiction over the case
of the failure to comply with the prescribed regimen. In a procedure similar
to revocation of probation, upon notice by the medical director or other
probable cause to believe the person has failed to comply with the regimen,
the person may be arrested and, upon arrest, must be brought without
unnecessary delay before the court having jurisdiction. The court must, after
a hearing, determine whether the person should be remanded to a suitable
facility on the ground that, in light of his failure to comply with the prescribed
regimen of medical care or treatment, his continued release would create a
substantial risk of serious bodily injury to another person or serious damage
to property of another.
Id. 1123-24 (emphasis added).
The 1980 Report, like the 1980 Markup, thus makes no mention of a proof standard
governing the revocation component of the conditional discharge scheme. As indicated by
the emphasized language immediately above, however, the Judiciary Committee compared
the contemplated conditional discharge revocation process to the then-existing procedure
for “revocation of probation.” Id. That observation is noteworthy, inasmuch as the 1980
Markup also included § 2105 within Senate Bill 1722; § 2105 dealt with “Revocation of
Probation.” 1980 Markup at 180. The proposed process for probation revocation also
omitted a proof standard; that standard remains unstated in the current probation revocation
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scheme found in 18 U.S.C. § 3565(a) and Federal Rule of Criminal Procedure 32.1.10
Additionally, § 2303 of Senate Bill 1722 dealt with another form of judicial supervision. It
included the new option for supervised release following imprisonment. Section 2303
provided no revocation option at all, much less a governing proof standard. At this point in
the legislative process, then, all three proposed, major forms of judicial supervision lacked
any proof standard for adjudicating violations of the conditions imposed.
Despite the immense work devoted to it, Senate Bill 1722 did not receive a vote. 11
Just over a year later, however, on March 30, 1981, a seismic development occurred.
President Ronald W. Reagan was the victim of an attempted assassination by John
10
There is another noteworthy indication in the Markup respecting the standard of
proof for conditional discharge revocation under 4246(f). Section 3615 of Senate Bill 1722
-- dealing with hospitalization of an imprisoned person suffering from a mental disease or
defect -- is followed immediately by the § 3616 scheme that includes revocation of
conditional discharge. These two proposed statutes ultimately became, respectively, 18
U.S.C. §§ 4245 and 4246. The Markup reflects the Judiciary Committee changed the
omitted proof standard in § 3615(d) by adopting a preponderance standard:
(d) DETERMINATION AND DISPOSITION.—If, after the hearing, the
court is of the opinion finds by a preponderance of the evidence that the
defendant is presently suffering from a mental disease or defect for the
treatment of which he is in need of custody for care or treatment in a suitable
facility, the court shall commit the defendant to the custody of the Attorney
General.
S. 1722 (Jan. 17, 1980) (emphasis added). As noted, however, it recommended no similar
alterations in § 3616. This is one more indication the absence of a proof standard in
§ 4246(f) was not the product of oversight.
11
The proposed criminal code reform legislation thus went the way of its
predecessor and successor bills until 1983. See 119 Cong. Rec. 989-1018 (1973); 121
Cong. Rec. 121, 215-20 (1975); 123 Cong. Rec. 13059, 13061 (1977); 127 Cong. Rec.
29025 (1981).
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Hinckley, Jr., who was ultimately found not guilty by reason of insanity. The verdict
produced “stunned surprise” and a “cascade of public outrage.” Russell D. Covey, Criminal
Madness: Cultural Iconography and Insanity, 61 Stan. L. Rev. 1375, 1418 n.20 (2009)
(quoting Richard J. Bonnie et al., A Case Study in the Insanity Defense: The Trial of John
W. Hinckley, Jr., 121 (3d ed. 2008) (quoting Stuart Taylor, Jr., The Hinckley Riddle, N.Y.
Times, June 24, 1982, at D21)).
The Honorable Barrington D. Parker presided at Mr. Hinckley’s trial. He observed
the unprecedented impact of the attempted assassination and the verdict that followed:
After several days of careful deliberation, the jurors concluded that
they had a reasonable doubt as to Hinckley’s mental state at the time of the
assassination attempt; therefore, he should not be held criminally responsible
for the crimes charged in the indictment.
In view of the public outrage over the verdict, together with the
charged political and social climate of the time, it was not surprising that the
insanity plea was the immediate target of relentless attacks from all sources.
For many, the defense was a clear manifestation of the failure of our criminal
justice system to punish individuals who clearly violated the law.
In the wake of Hinckley, the Senate and House Judiciary Committees
of the Congress scheduled hearings and considered weeks of diverse
testimony from highly qualified experts with varied experiences.
See Rita J. Simon & David E. Aaronson, The Insanity Defense: A Critical Assessment of
Law and Policy in the Post-Hinckley Era viii (1988).
The attempted assassination and disposition provided the necessary catalyst for a
historic reform of the federal criminal code, with particular attention to how the federal
sovereign would treat the intersection between mental illness and criminal misconduct.
Monica Trucco, Juvenile Justice? Federal Involuntary Commitment and the Underlying
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Policy: A Case Comment on United States v. S.A., 26 New Eng. J. on Crim. & Civ.
Confinement 193, 205 (2000) (“The principal reason for the reformation of the federal law
dealing with mental illness was the 1981 attempted assassination of President Ronald
Reagan by John Hinckley.”).
On January 26, 1983, just months following the June 21, 1982, Hinckley verdict,
Senator Thurmond addressed his colleagues on the Senate floor: “Mr. President, today I
am introducing a bill to define the affirmative defense of insanity and to establish uniform
and comprehensive procedures for the civil commitment of Federal offenders suffering
from a mental disease or defect.” 129 Cong. Rec. 661 (daily ed. Jan. 26, 1983) (emphasis
added) (statement of Senator Strom Thurmond). Senator Thurmond simultaneously added
to the record a “Section-by-Section Analysis” of his Senate Bill 105, providing pertinently
that “[s]ubsection (f) [of the proposed 18 U.S.C. § 4246] permits revocation of a
conditional release order if such a risk is created anew by the person’s failure to comply
with the conditions of release.” Id. at 664.
A few months later, on March 16, 1983, President Reagan transmitted a proposed
comprehensive criminal code reform package to Congress, placing the long-studied project
before Congress once again. Message from the President Transmitting “A Proposal for
Legislation Entitled the Comprehensive Crime Control Act of 1983,” H.R. Doc. No. 98-32
(1983). Senator Thurmond’s bill and President Reagan’s package resulted in Senators
Kennedy, Thurmond, Paul Laxalt, and Joseph R. Biden, Jr., introducing a bipartisan,
omnibus anticrime package in the form of Senate Bill 1762, which was then referred to the
Judiciary Committee.
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Senate Bill 1762 contained most of President Reagan’s proposals and also the
Insanity Defense Reform Act, which included the proposed § 4246 that previously was
enumerated § 3616 in the 1980 Markup of Senate Bill 1722. Major Crime Package Cleared
by Congress, in CQ Press Library, CQ Almanac 215 (1985), available in CQ Press Library,
CQ Almanac, http://library.cqpress.com/cqalmanac/cqal84-1152527 (last visited Sept. 4,
2022). Document ID: cqal84-1152527 (“Almanac”).
One commentator who has intensively studied the Senate committee process for
decades -- focusing in particular on the period when the 1984 CCCA was enacted -- noted
the unusual, bipartisan history surrounding criminal law reform during the period:
The version of the bill brought into markup in 1983 contained an array of
provisions that had been before the committee in previous years, ranging
from bail and sentencing reform to measures relating to drug penalties and
the insanity defense. Before hearings were held, [Senator] Thurmond and
then subcommittee chair [Senator] Paul Laxalt planned to include in the
legislation highly controversial provisions relating to capital punishment,
habeas corpus, and the exclusionary rule. With these items included, many
Democrats intended to fight the legislation.
In response, [then-Senator] Biden proposed that the more controversial
provisions be removed and considered as separate pieces of legislation. A
Republican staffer included in the negotiations described the process.
During the hearings, [Senators] Biden and Kennedy said there
were a lot of good parts to the bill and asked why it was
burdened with controversial sections.
What we got was the deal that we would take out of the
package those sections that the Democrats didn’t like and
construct a new package, with [Senators] Thurmond, Biden,
Laxalt, and Kennedy as cosponsors. They would . . . act in
union. If any one of those four objected to an amendment in
committee, all four would line up in support. It was a veto
power.
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This alliance between [Senators] Strom Thurmond, Joseph Biden, Paul
Laxalt, and Edward Kennedy was crucial to timely Senate action on the
legislation . . . .
[Senators] Thurmond and Biden were able to coalesce by striking the more
divisive provisions from the package, and uniting behind more consensual
ones . . . .
C. Lawrence Evans, Leadership in Committee: A Comparative Analysis of Leadership
Behavior in the U.S. Senate 115-17 (2001) (emphasis added).
On September 14, 1983, the Judiciary Committee produced another lengthy
document, similar to the 1980 Report, concerning Senate Bill 1762. See Comprehensive
Crime Control Act of 1983, Report of the Committee on the Judiciary United States Senate,
S. Rep. No. 98-225 (1983) (“1983 Report”). A comparison of the heretofore-quoted portion
of the 1980 Report provisions on then-subsection 3616(f) and the 1983 Report on the
proposed § 4246(f) reveals only one change, namely, the word “serious” preceding “bodily
injury” is omitted in the 1983 Report. Compare 1980 Report at 1123-24, with 1983 Report
at 253. Further, the Judiciary Committee comparison of revocation of conditional discharge
to “revocation of probation” remained intact. Compare 1980 Report at 1123-24, with 1983
Report at 253. Interestingly, however, the new sentencing option of supervised release
reflected in Senate Bill 1762 and the 1983 Report accompanying it still contemplated no
revocation scheme. The 1983 Report instead observed as follows:
The term of supervised release is very similar to a term of probation, except
that it follows a term of imprisonment and may not be imposed for purposes
of punishment or incapacitation since those purposes will have been served
to the extent necessary by the term of imprisonment. Unlike a term of
probation, however, the term of supervised release is not subject to
revocation for a violation. Instead, for the usual violations, the term or
conditons [sic] of supervised release may be amended pursuant to subsection
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(e). If the violation is a new offense, the defendant may, of course, be
prosecuted for the offense or held in contempt of court for violations of the
court order setting the conditions of supervised release. The Committee did
not provide for revocation proceedings for violation of a condition of
supervised release because it does not believe that a minor violation of a
condition of supervised release should result in resentencing of the defendant
and because it believes that a more serious violation should be dealt with as
a new offense.
1983 Report at 125 (emphasis added); see Senate Bill 1762 at 165 (“The court may, after
considering . . . [certain] factors . . . (3) treat a violation of a condition of a term of
supervised release as contempt of court pursuant to section 401(3) of this title.”).
While some of the heretofore-quoted language from the 1980 Report respecting the
burdens and standards of proof does not appear in the 1983 Report, those standards are still
prominently discussed at various points throughout the latter, including the discussion of
reforms to the insanity defense and the civil commitment process. See, e.g., 1983 Report
at 225 (“Thus, it is clear that the question of which party -- the government or the defendant
-- should bear the burden of proof on the insanity defense, as well as the appropriate
standard, are not of constitutional dimensions beyond the power of Congress to legislate.”);
id. at 229 (“More than half of the States now place the burden of proving insanity on the
defendant, albeit often by a preponderance of the evidence standard. As previously noted,
the Supreme Court . . . has made it clear that placing this burden of proof on the defendant
under a standard of clear and convincing evidence is constitutionally permissible.”); id. at
230; id. at 236 (“Subsection (d) of section 4241 provides that the court must make a
determination with respect to the defendant’s competency based upon a preponderance of
the evidence.”); id. at 237; id. at 238; id. at 240 n.58; id. at 242-43; id. at 246; id. at 249.
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One such reference to “preponderance of the evidence” is found in the 1983 Report on the
page immediately preceding discussion of subsection § 4246(f). Id. at 252. Again, these
many references to standards of proof, some in close proximity to the 1983 Report
discussion of the proposed, revised § 4246(f), by this point appear to conclusively foreclose
any notion that Congress mistakenly omitted a governing proof standard for revocation of
conditional discharge; it instead appears the omission was entirely purposeful.
Ultimately, the material provisions of the proposed § 4246 contained in Senate Bill
105 originally introduced by Senator Thurmond in January 1983 were included in Senate
Bill 1762. And, in particular, subsection 4246(f) of Senate Bill 105 emerged entirely
unscathed after its inclusion in Senate Bill 1762. Compare 18 U.S.C. § 4246(f), with 129
Cong. Rec. S667 (daily ed. Jan. 26, 1983).
On February 2, 1984, Senate Bill 1762 passed by a 91-1 margin. Almanac at 215.
The proceedings thereafter in both the House of Representatives and in conference follow:
On Sept. 25, House Republicans employed an end run to get the Senate crime
bill passed. Rep. Dan Lungren, R-Calif. a Judiciary Committee member,
made a motion to send the “must-pass” fiscal 1985 continuing appropriations
resolution (HJ Res 648) back to the Appropriations Committee with
instructions to attach a House bill (HR 5963) identical to the Senate crime
package and return the measure to the full House.
Lungren’s motion was agreed to 243-166, with 89 Democrats joining 154
Republicans in supporting the maneuver. . . .
The funding bill, with the crime package attached, promptly returned to the
House floor and was passed the same day, 316-91. . . .
On Oct. 2, House Democrats countered by consolidating various Judiciary
Committee proposals into one bill (HR 5690) and proposing it for passage
under suspension of the rules, which requires a two-thirds majority. The bill
passed 406-16. . . .
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When the funding bill (HJ Res 648) got to the Senate, members decided to
retain the crime provisions, even though most other riders were eventually
stripped from the measure. . . .
The Senate decision assured that major crime legislation would be enacted
in 1984. And the House Democrats’ Oct. 2 move to pass their own bill [(HR
5690)] did have some effect on the final product. When appropriations
conferees met Oct. 10, they called in House and Senate Judiciary members
to advise them on the crime section of HJ Res 648.
During a lengthy and somewhat testy meeting, a final compromise crime
package was worked out.
Almanac at 215.
At least one element of the compromise is noteworthy. Title II of House of
Representatives Bill 5690 dealt with the “Insanity Defense.” H.R. 5690, 98th Cong. Title
II 28 (1984). The Bill included a civil commitment provision of its own, along with a
conditional discharge scheme at § 4175. The revocation hearing for those who violated
their conditional discharge was prescribed in § 4175(f) as follows:
Following such [revocation] hearing, the court—
(1) shall recommit the person under section 4174 of this title if
the court finds by a preponderance of the evidence that the
likelihood that the person will commit acts of serious bodily
injury to any person or substantial damage to the property of
another is sufficient to justify commitment . . . .
Id. at 64 (emphasis added). The proposed preponderance standard in House of
Representatives Bill 5690 died in Conference on October 10, 1984; instead, the Senate --
and the current -- version of conditional discharge and revocation found in § 4246(f) was
included in the proposed 1984 CCCA, which was, in turn, then added to House Joint
Resolution 648, the appropriations bill for Fiscal Year 1985.
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With President Reagan’s signature on October 12, 1984, the 1984 CCCA, Pub. L.
No. 98-473, 98 Stat. 1976, as Title II of a Continuing Appropriations Act for Fiscal Year
1985, became law. Continuing Appropriations, 1985 -- Comprehensive Crime Control Act
of 1984, S. Rep. No. 98-225 (1983), as reprinted in 1984 U.S.C.C.A.N. 3182. One
commentator described the 1984 CCCA as “a series of sweeping changes” and “‘the most
significant series of changes in the federal criminal justice system ever enacted at one
time.’” Rachel E. Barkow, Categorical Mistakes: The Flawed Framework of the Armed
Career Criminal Act and Mandatory Minimum Sentencing, 133 Harv. L. Rev. 200, 210
(2019) (quoting Joseph E. diGenova & Constance L. Belfiore, An Overview of the
Comprehensive Crime Control Act of 1984 -- The Prosecutor’s Perspective, 22 Am. Crim.
L. Rev. 707, 707 (1985)); see also S. Rep. 98-225, at 1, as reprinted in 1984 U.S.C.C.A.N.
3182, 3184 (“The Comprehensive Crime Control Act . . . is the product of a decade long
bipartisan effort of the Senate Committee on the Judiciary, with the cooperation and
support of successive administrations, to make major comprehensive improvements to the
federal criminal laws. Significant parts of the measure, such as . . . insanity defense
amendments . . . have evolved over the almost two-decade consideration of proposals to
enact a modern federal criminal code.”).
As a result of the bulk of Senate Bill 1762 finding its way into the 1984 CCCA,
neither (1) the newly amended § 3565(a)(2) or Federal Rule of Criminal Procedure 32.1
dealing with probation revocation, nor (2) the newly added § 4246(f) dealing with
revocation of conditional discharge, contained a proof standard governing the judicial
decision. Additionally, respecting the entirely new sentencing option of supervised release,
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revocation under § 3583(e)(3) was not even an option. The district court was limited to
entering a contempt sanction, again with no textual proof standard imposed. 12
With this extended historical context, we now turn to the two questions presented.
V.
A. The Proof Standard for § 4246(f)
1. Textual Analysis
The Supreme Court has consistently reiterated our interpretive task begins with the
statutory text:
Congress expresses its intentions through statutory text passed by both
Houses and signed by the President (or passed over a Presidential veto). As
this Court has repeatedly stated, the text of a law controls over purported
legislative intentions unmoored from any statutory text. The Court may not
“replace the actual text with speculation as to Congress’ intent.”
Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2496–97 (2022) (quoting Magwood v.
Patterson, 561 U.S. 320, 334 (2010)); id. (noting further “the legislature says what it means
and means what it says”) (quoting Henson v. Santander Consumer USA Inc., 137 S. Ct.
1718, 1725 (2017) (internal quotation marks and alterations omitted). We have emphasized
the same approach: “‘As with all cases involving statutory interpretation, we begin our
analysis with the text of the governing statute.’” United States v. Perez, 22 F.4th 430, 436
(4th Cir. 2022) (quoting United States v. Muhammad, 16 F.4th 126, 128 (4th Cir. 2021)).
12
Section 3583 was amended on October 27, 1986. Anti-Drug Abuse Act of 1986,
Pub. L. 99–570, 100 Stat. 3207 § 1006 (Oct. 27, 1986). The amendment required a finding
“by a preponderance of the evidence” that the supervisee violated her conditions. Id.
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That task is straightforward with § 4246(f); as noted, Congress inserted no proof
standard. To the extent necessary, that conclusion is fortified by Congress inserting two
other proof standards elsewhere in § 4246. It is quite tempting to read in a proof standard
where none exists. One might base that addition upon the legislative history, common
sense, reason, supposition, or simply a desire to guide the district court’s discretion or aid
our review. Regardless of the motivation, that perhaps well-meaning approach inevitably
smacks of an ill-advised judicial amendment. That is especially the case given -- as more
fully discussed in the next section -- the obvious care taken with § 4246 during the
legislative process, which spanned years. We are thus left with no textual proof standard
in § 4246(f).
2. Confirmation by Legislative History
While resort to legislative history is unnecessary, we have occasionally examined it
to confirm the textual analysis. In re Eli Lilly & Co., 37 F.4th 160, 165 (4th Cir. 2022)
(“This textual conclusion is confirmed by legislative history, although any reference to
legislative history in these circumstances might be gratuitous.”); Krakauer v. Dish
Network, L.L.C., 925 F.3d 643, 657 (4th Cir. 2019) (“The extensive legislative history
accompanying the TCPA confirms its broad reach.”); Hately v. Watts, 917 F.3d 770, 785
(4th Cir. 2019) (“The plain language of this definition encompasses email. And the
legislative history confirms that Congress intended this definition to encompass email.”).
From the moment § 4246(f) was drawn by the Judiciary Committee in 1979, and
then transmitted to the full Senate in the 1980 Markup, it contained no proof standard. And,
as noted, the language of that subsection remained materially static from its inception in
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the 1980 Markup through its incorporation into the 1984 CCCA. Within that time period,
the leadership of both the Senate and the Judiciary Committee changed hands in 1981.
Despite that rather tectonic political shift, both men who chaired the Judiciary Committee
during the relevant periods -- Senator Kennedy through 1980 and Senator Thurmond
thereafter through the enactment of the 1984 CCCA -- supported the proposed statutory
language found in § 4246(f).
Further, as earlier noted, the 1980 and 1983 Reports -- not to mention the various
Senate Bills earlier discussed -- were replete with references to proof standards, some of
which were found, and remain, in § 4246 presently. Indeed, as noted supra, the 1980
Markup added a proof standard (preponderance of the evidence) to the proposed statutory
section that ultimately became § 4245, immediately preceding the statutory section that
became § 4246. The absence of a § 4246(f) proof standard was a legislative choice.
Were that an open question, however, all doubt is dispelled by what occurred during
Conference on the 1984 CCCA. As the discussion in Part IV.E demonstrates, within the
civil commitment process in Title II of House of Representatives Bill 5690 dealing with
the “Insanity Defense,” H.R. 5609, 98th Cong. Title II 28 (1984), one who would have
been federally committed and then conditionally released under proposed Chapter 310,
§ 4175, was subject to recommitment if the court found “by a preponderance of the
evidence that the likelihood that the person will commit acts of serious bodily injury to any
person or substantial damage to the property of another is sufficient to justify
commitment.” Id. at 64 (emphasis added). The striking of that provision during
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Conference, substituting for it the Senate Bill 1762 version of § 4246(f) containing no proof
standard, is a drafting event of significant moment:
“Few principles of statutory construction are more compelling than the
proposition that Congress does not intend sub silentio to enact statutory
language that it has earlier discarded in favor of other language.” INS v.
Cardoza-Fonseca, 480 U.S. 421, 442–43 (1987) (quoting Nachman Corp. v.
Pension Benefit Guar. Corp., 446 U.S. 359, 392–93 (1980) (Stewart, J.,
dissenting)); see also Muniz v. Hoffman, 422 U.S. 454, 468 (1975)
(explaining that statutory text “may not be read isolated from its legislative
history and the revision process from which it emerged, all of which place
definite limitations on the latitude we have in construing it.”).
Garey v. James S. Farrin, P.C., 35 F.4th 917, 927 (4th Cir. 2022).
The legislative history thus abundantly confirms that there is no textual proof
standard in § 4246(f). Leaving the matter there, however, is unacceptable. It is one thing to
find a textual proof standard unstated and quite another to assume no proof standard was
intended at all. Whether the absence of a governing textual proof standard results in a latent
ambiguity or, alternatively, the plain meaning of the statute nevertheless produces an
“absurdity . . . or an outcome that is demonstrably at odds with clearly expressed
congressional intent,” we are obliged to probe more deeply. In re Sunterra Corp., 361 F.3d
257, 265 (4th Cir. 2004). That is especially the case where, as here, a missing or
misunderstood proof standard might cause either (1) the mistaken deprivation of one’s
liberty, or (2) an errant release of one bent on causing catastrophic harm.
A broader textual and contextual analysis of the 1984 CCCA is thus warranted,
using our customary canons. Of immediate interest is the two-fold consideration that (1)
the 1980 and 1983 Reports analogized conditional discharge and revocation to probation,
and (2) both of those forms of judicial supervision found in the 1984 CCCA lack a proof
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standard. In view of the parallels between these two forms of judicial supervision -- one
brand new and one in existence for decades -- the well-developed probation revocation
model may have influenced Congress’ approach under § 4246(f). An analysis of the
probation imposition and revocation process in place on the eve of the 1984 CCCA may
thus inform the proper interpretation of § 4246(f).
3. The Probation Analogy
As noted, when the 1984 CCCA was enacted, it not only created the entirely new
process for conditional discharge and revocation under § 4246(f), but also modified the
longstanding process for imposing and revoking probation.
Unlike the conditional discharge and revocation process, however, probation was
an authorized sentence long predating enactment of the 1984 CCCA. It is thus not only
helpful to consider how the probation revocation process worked in the decades preceding
the 1984 CCCA—it is an essential part of the construction process:
As a matter of statutory construction, federal courts “presume that Congress
is knowledgeable about existing law pertinent to the legislation it enacts.”
Goodyear Atomic Corporation v. Miller, 486 U.S. 174, 184–85 (1988); see
also Strawn v. AT&T Mobility, LLC, 530 F.3d 293, 297 (4th Cir. 2008)
(recognizing that “in the absence of statutory text reversing the burden of
proof, we presume that Congress legislated consistently with existing law”);
United States v. Langley, 62 F.3d 602, 605 (4th Cir. 1995) (en banc)
(explaining that “it is firmly entrenched that Congress is presumed to enact
legislation with knowledge of the law; that is with the knowledge of the
interpretation that courts have given to an existing statute”) (referencing
Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 267–68 (1992)). Accordingly,
“‘absent a clear manifestation of contrary intent, a newly-enacted or revised
statute is presumed to be harmonious with existing law and its judicial
construction.’” Id. (quoting Est. of Wood v. Comm’r, 909 F.2d 1155, 1160
(8th Cir. 1990).
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Pugin v. Garland, 19 F.4th 437, 458–59 (4th Cir. 2021) (Gregory, C.J., dissenting); see
also United States v. Cong. of Indus. Organizations, 335 U.S. 106, 112 (1948) (“There is
no better key to a difficult problem of statutory construction than the law from which the
challenged statute emerged.”); Palisades Collections LLC v. Shorts, 552 F.3d 327, 335 (4th
Cir. 2008) (“[W]e presume that Congress legislated consistently with existing law and with
the knowledge of the interpretation that courts have given to the existing statute.”).
With President Calvin Coolidge’s signature on March 4, 1925, the United States
first authorized a sentence of probation. An Act to Provide for the Establishment of a
Probation System in the United States Courts, Except in the District of Columbia, ch. 521,
43 Stat. 1259 (1925). The very first revocation provisions read as follows:
At any time after the probation period, but within the maximum period for
which the defendant might originally have been sentenced, the court may
issue a warrant and cause the defendant to be arrested and brought before the
court. Thereupon the court may revoke the probation or the suspension of
sentence, and may impose any sentence which might originally have been
imposed.
Id. at 1260. No proof standard appears. The statutory language changed very little until a
May 24, 1949, amendment modified the revocation language to read as follows:
As speedily as possible after arrest the probationer shall be taken before the
court for the district having jurisdiction over him. Thereupon the court may
revoke the probation and require him to serve the sentence imposed, or any
lesser sentence, and, if imposition of sentence was suspended, may impose
any sentence which might originally have been imposed.
Probation, ch. 139, 63 Stat. 96 (1949). Again, no proof standard appears. This version of
the revocation provision remained intact until enactment of the 1984 CCCA. In sum, for
the 59 years preceding the 1984 CCCA, Congress found it unnecessary to insert a proof
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standard into its probation revocation scheme. It instead stood silent on the matter, even
after the watershed decision in Gagnon v. Scarpelli, 411 U.S. 778 (1973), that essentially
rewrote the due process protections attendant to the probation revocation process. Id. at
782 (“Probation revocation, like parole revocation, is not a stage of a criminal prosecution,
but does result in a loss of liberty. Accordingly, we hold that a probationer, like a parolee,
is entitled to a preliminary and a final revocation hearing, under the conditions specified in
Morrissey v. Brewer[, 408 U.S. 471 (1972).]”). And when Congress reworked the
probation process entirely in the 1984 CCCA, it likewise inserted no proof standard. And,
as earlier noted, there is presently no textual proof standard for probation revocations.
In accord with Goodyear and its progeny, we examine the probation revocation
proof standard(s) against which Congress legislated in 1984. At that time, the Circuits were
split respecting two different proof standards guiding a district court’s discretionary
decision on probation revocation:
Standards for proof in such proceedings did emerge, however, through
judicial review of revocation decisions. . . . Alternatively, the court may look
to see if the “evidence and facts be such as to reasonably satisfy the judge
that the conduct of the probationer has not been as good as required by the
conditions of probation.” A number of recent decisions have found the
“reasonably satisfy” test to be adequate even under the due process mandate
of Morrissey.
A small minority of courts had required a preponderance of the
evidence as a basis for revocation of probation or parole even prior to
Morrissey. Subsequent to Morrissey, a number of state courts also held that
such a standard of proof is required to satisfy due process. No court has held,
and a number of courts have expressly rejected, the contention that a
violation need be proved beyond a reasonable doubt.
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William C. Bowers, Comment, Does Due Process Require Clear and Convincing Proof
Before Life’s Liberties May Be Lost?, 24 Emory L.J. 105, 123–24 (1975) (emphasis added)
(footnotes omitted) (“The vast majority of state statutes, as well as the federal parole and
probation statutes, contain no direction as to the necessary burden of proof.”) (footnotes
omitted).
The majority approach appears to have resulted from Burns v. United States, 287
U.S. 216 (1932). The decision in Burns observed as follows:
There is no suggestion in [the Federal Probation Act] that the scope of the
discretion conferred for the purpose of making the grant [of probation] is
narrowed in providing for its modification or revocation . . . . The question
in both cases is whether the court is satisfied that its action will subserve the
ends of justice and the best interests of both the public and the defendant.
Id. at 221 (emphasis added). Based upon the Burns decision, as noted by the commentator,
nearly all circuits prior to the 1984 CCCA adopted the “reasonable satisfaction” test. See,
e.g., United States v. Smith, 571 F.2d 370, 372 (7th Cir. 1978) (holding that the Court would
“adhere to the rule that a district court may revoke probation when ‘reasonably satisfied’
that the probationer ha[d] violated a condition of his probation”); United States v. Strada,
503 F.2d 1081, 1085 (8th Cir. 1974) (holding that “the trial judge is given a great deal of
latitude in revocation proceedings. In order to justify a revocation order ‘all that is required
is enough evidence, within a sound judicial discretion, to satisfy the district judge that the
conduct of the probationer has not met the conditions of his probation’” (cleaned up));
United States v. Garza, 484 F.2d 88, 89 (5th Cir. 1973) (holding that “[a] revocation of
probation does not require proof sufficient to sustain a criminal conviction. All that is
required is enough evidence, within a sound judicial discretion, to satisfy the district judge
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that the conduct of the probationer has not met the conditions of the probation”); United
States v. Carrion, 457 F.2d 808, 809 (9th Cir. 1972) (holding that “[p]robation may be
revoked when the judge is reasonably satisfied that a state of federal law has been violated,
and conviction is not a prerequisite”); United States v. D’Amato, 429 F.2d 1284, 1286 (3d
Cir. 1970) (holding that “[t]he district judge need only be reasonably satisfied that the terms
of the probation have been violated” to revoke probation); United States v. Nagelberg, 413
F.2d 708, 709 (2d Cir. 1969) (holding that “[o]n a hearing to revoke probation, all that is
required is that the court be satisfied that appellant had abused the opportunity granted him
not to be incarcerated” (cleaned up)); Nelson v. United States, 225 F.2d 902, 903 (10th Cir.
1955) (holding that “[c]ourts may not act arbitrarily in revoking probations, but all that is
required is evidence and facts which reasonably satisfy the judge that the probationer’s
conduct has not been as good as that required by the conditions of probation”); accord
Yates v. United States, 308 F.2d 737 (10th Cir. 1962); Rodgers v. United States, 413 F.2d
251 (10th Cir. 1969).
This was thus the backdrop against which Congress -- in a single, historic statutory
overhaul represented by the 1984 CCCA -- simultaneously touched nearly all forms of
judicial supervision by (1) rewriting the probation statutes, (2) creating the new process for
conditional discharge and revocation under § 4246, and (3) authorizing a contempt sanction
for violation of the freshly minted sentence of supervised release. The synchronous
enactment alone is of great moment for interpretive purposes. See Erlenbaugh v. United
States, 409 U.S. 239, 243 (1972) (noting that the presumption of consistent meaning
between statutory language “certainly makes the most sense when the statutes were enacted
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by the same legislative body at the same time”) (quoted in United States v. Simms, 914
F.3d 229, 243 (4th Cir. 2019) (en banc)); see also Stevenson’s Heirs v. Sullivant, 18 U.S.
207, 220 (1820) (“These laws have extraordinary claims to be considered as one statute.
They were compiled at the same time, by the same committee, composed of the ablest
lawyers and civilians of their country -- enacted at the same session of the same legislative
body, in the same year, (1785;) and, lastly, all went into operation at the same time, on the
1st of January, 1789.”).
The canons aside, aligning the revocation proof standards for each of the three types
of judicial supervision makes good sense. As noted, the 1980 and 1983 Reports recognized
the similarities between probation and conditional discharge under § 4246(f). We have, in
turn, recognized that probation and supervised release are nearly identical in form. United
States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992) (“Supervised release and probation
differ only in that the former follows a prison term and the latter is in lieu of a prison
term.”).
It follows ineluctably that Congress found satisfactory the existing judicial proof
standard governing revocation of probation, the primary form of judicial supervision at the
time. And that standard is, at a minimum, instructive as to the proper proof standard
governing revocation of conditional discharge under § 4246(f), as both bear on the same
concept of judicial supervision, were enacted simultaneously, and were compared to one
another by the Judiciary Committee in the years leading to the 1984 CCCA. And that would
be the end of the interpretive process, with a seamless adoption of the “reasonably
satisfied” standard for revocation under §4246(f).
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Following enactment of the 1984 CCCA, however, the proof-standard scorecard has
changed markedly, with at least seven circuits, whether by published or unpublished
decision, moving to the preponderance standard for revocation of probation. United States
v. Teran, 98 F.3d 831, 836 (5th Cir. 1996) (“The revoking court must base a finding of a
probation violation on a preponderance of the evidence.”); United States v. Bujak, 347 F.3d
607, 609 (6th Cir. 2003) (holding “that the preponderance of the evidence standard also
applies to determinations of whether a probationer has violated a condition of probation”);
United States v. Smith, 767 F.2d 521, 523–24 (8th Cir. 1985) (“[T]he standard of proof
required for probation revocation is only a preponderance of the evidence . . . .”); United
States v. Verduzco, 330 F.3d 1182, 1185 (9th Cir. 2003) (noting that the difference between
probation and supervised released revocation is “inconsequential” for evidentiary
purposes); United States v. Lyons, 312 F. App’x 133, 134 (10th Cir. 2009) (affirming the
district court’s finding that, by a preponderance of the evidence, the defendant violated
probation); United States v. Lamelas-Linares, 181 F. App’x 788, 789 (11th Cir. 2006)
(noting that violation of probation need only be found using a preponderance of the
evidence standard); United States v. Hooker, 993 F.2d 898, 900 (D.C. Cir. 1993) (finding
the preponderance of the evidence standard to be the appropriate standard for revocation
of probation proceedings).
We have followed a similar course. We used the “reasonably satisfied” standard
exclusively until approximately one decade ago. United States v. Simmons, 370 F. App’x
374, 375 (4th Cir. 2010) (“The court must be reasonably satisfied that the defendant
violated a condition of probation.”); United States v. Bartrug, No. 93-5829, 1995 WL
55USCA4 Appeal: 20-7024 Doc: 42 Filed: 05/04/2023 Pg: 56 of 112
444836, at *1 (4th Cir. Jul. 28, 1995) (“We find that there was sufficient evidence presented
in this case from which the district court could be reasonably satisfied that Bartrug violated
the conditions of his probation and supervised release.”); United States v. Cates, 402 F.2d
473, 474 (4th Cir. 1968) (“Revocation is discretionary with the District Judge, and he need
only be reasonably satisfied that a probationer has violated the terms of his release.”);
United States v. Williams, 378 F.2d 665, 666 (4th Cir. 1967) (“All that is required is that
the evidence and facts be such as to reasonably satisfy the judge that the conduct of the
probationer has not been as good as required by the conditions of the probation.” (cleaned
up)).
More recently, we have consistently used the preponderance standard for probation
revocation. United States v. Sadeghi, 616 F. App’x 607, 608 (4th Cir. 2015) (“Rather, the
district court need only find a violation of a probation term by a preponderance of the
evidence.”); United States v. Kirby, 547 F. App’x 363, 364 (4th Cir. 2013) (“To revoke a
defendant’s probation, the district court need only find a violation by a preponderance of
the evidence.”); United States v. Carroway, 410 F. App’x 712, 712 (4th Cir. 2011) (“The
district court need find a violation of a term of probation by only a preponderance of the
evidence.”). This change may find its origins in a combination of factors, including (1) the
trend in the circuits, (2) our 1992 observation that “[s]upervised release and probation
differ only in that the former follows a prison term and the latter is in lieu of a prison term,”
United States v. Copley, 978 F.2d 829, 831 n.* (4th Cir. 1992), and (3) perhaps the 1986
“technical amendment” to § 3583(e)(3) requiring that violations of supervised release
conditions be based on findings by a preponderance. Pub. L. No. 99-570, 100 Stat. 3207
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(1986) (codified at 18 U.S.C. § 3283(e)(3)). Irrespective of the reason, it appears we now
require the finding of a probation violation by a preponderance of the evidence.
Considering (1) the 1980 and 1983 Reports equating probation and conditional
discharge, (2) Congress’ apparent satisfaction with the proof standard for probation
revocation as it existed at the time of the 1984 CCCA, (3) Congress’ amendment to
§ 3583(e)(3) to require use of the preponderance standard in the supervised release
revocation process, and (4) the parallel we observed decades ago between probation and
supervised release, we think it fully supported by the statutory text, the legislative history,
consistency, and good sense to require use of the preponderance standard for revocations
uniformly across the three essentially identical judicial supervision processes for
conditional discharge, probation, and supervised release. Furthermore, we apply that
standard to both determinations necessary for revocation under § 4246(f), namely, (1) the
failure to comply with a conditional discharge treatment regimen, and (2) whether that
failure gives rise to dangerousness and revocation.
B. Conducting the Dangerousness Inquiry
We now move to the second question presented in this appeal, namely, the process
by which the district court will make its revocation findings under § 4246(f) (the
“dangerousness inquiry” or “risk assessment”). As noted, the district court observed as
follows during the revocation hearing for Mr. Perkins:
This is a very new area for the Court to get into. In the past, I had felt
— and I guess I still do — that violation of the order of conditional release
is in itself a qualification for — a reason for revocation of conditional release
and recommitting the respondent to the custody of the Attorney General.
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I really don’t — and I hope the Fourth Circuit will amplify what it
meant by having to find these additional requirements.
J.A. 138–39. After reciting the violations it found to have existed, the district court stated
without elaboration “that the violations heretofore set out depicting the conduct of the
defendant during his release would create a substantial risk of bodily injury to another
person or serious damage to the property of another.” Id. 141 (emphasis added).
The district court’s desire for guidance is one shared by other courts. See, e.g.,
United States v. Sahhar, 917 F.2d 1197, 1207 (9th Cir. 1990) (“Section 4246 provides little
guidance as to how the government must prove that the person to be committed poses a
substantial risk of causing bodily injury or serious property damage. . . . Rather, the
substantial risk requirement ‘guides the judge who must make the commitment decision,’
and creates essentially the same standard for federal involuntary commitment as used in
many state procedures.” (cleaned up)).
As noted, the § 4246(f) revocation decision hinges upon the outcome of a hearing,
after which the district court must determine “whether the person should be remanded to a
suitable facility on the ground that, in light of his failure to comply with the prescribed
regimen of medical, psychiatric, or psychological care or treatment, his continued release
would create a substantial risk of bodily injury to another person or serious damage to
property of another.” 18 U.S.C. § 4246(f). The plain meaning of the text is whether the (1)
subject’s “failure to comply with the prescribed regimen of medical, psychiatric, or
psychological care or treatment” (2) would result in “a substantial risk of bodily injury to
another person or serious damage to property of another.” 18 U.S.C.A. § 4246.
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We have not previously discussed at length the applicable factors for making and
supporting the second part of the statutory standard, namely, the dangerousness
determination. The most frequently cited source for that purpose, and one we have relied
upon in our unpublished decisions, is United States v. Ecker, 30 F.3d 966 (8th Cir. 1994),
and the few factors there noted. Those factors are “a history of dangerousness, a history of
drug or alcohol use, identified potential targets, previous use of weapons, any recent
incidents manifesting dangerousness, and a history of problems taking prescribed
medicines.” Id. at 970–71 (cited in United States v. Taylor, 644 F. App’x 227, 228 (4th Cir.
2016); United States v. Conroy, 546 F. App’x 311, 315 (4th Cir. 2013); United States v.
Sellers, 549 F. App’x 139, 141 (4th Cir. 2013); United States v. Taylor, 311 F. App’x 678,
679 (4th Cir. 2009)). The Ecker list of factors apparently originated thirty years ago from
their mention and use by an expert in the case referred to only as “Dr. Quinn.” Id. at 970. 13
13
More recently, the Eighth Circuit has offered additional, helpful guidance
respecting the dangerousness determination:
“Overt acts of violence are not required to demonstrate dangerousness.”
“[D]elusions and threats [are] enough to prove dangerousness even though
[the] defendant never had the opportunity to act on them.” The fact that a
person’s “recent behavior has been vastly improved,” on its own, “does not
require a finding that [the detainee] is not dangerous.” “[T]he recency or
remoteness of any particular activity simply affects the weight the court will
give to that particular evidence.” Nor does that fact, coupled with a detainee’s
“minimal history of actual violence,” require a finding that the detainee is
not dangerous. “A finding of substantial risk under § 4246 may be based on
any activity that evinces a genuine possibility of future harm to persons or
property.”
United States v. Dalasta, 3 F.4th 1121, 1125 (8th Cir. 2021) (cleaned up).
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These factors and guidance have proven helpful. But the concepts of dangerousness
and risk assessment are increasingly complex, multifaceted, and continually evolving. For
example, one watershed development post-Ecker was the multiyear study and 1998
publication of Rethinking Risk Assessment: The MacArthur Study of Mental Disorder and
Violence. John Monahan et al., Rethinking Risk Assessment: The MacArthur Study of
Mental Disorder and Violence (2001) (“MacArthur Study”). One reviewer observed as
follows the year following publication of the MacArthur Study:
This book is a clarion call for a new method of assessing an individual’s risk
of violence toward others in a community setting. It presents findings from
the MacArthur Violence Risk Assessment Study, a project conducted by
some of the nation’s leading forensic clinicians and researchers. Ten years in
the making, Rethinking Risk Assessment turns previous risk assessment
methods on their heads. Despite the fact that we have known for many years
that statistical methods of risk assessment are superior to clinical methods,
the old ways die hard.
....
The authors reviewed 134 risk factors, grouping them into “criminological”
and “clinical” categories. For clinical purposes, they recommend a subset of
106 factors for which information is readily obtainable. They conclude that
univariate predictors of violence have been shown to be poor predictors and
that an interactional approach is necessary. With this approach, one variable
could be a positive risk factor for violence in one group, unrelated to violence
in another group, and protective against violence in a third group.
Theodore Lawler, M.D., 53 Psychiatric Servs. 1355, 1484-a (2002) (reviewing MacArthur
Study) (emphasis added). As indicated in the emphasized portion, potentially material
factors predicting dangerousness were becoming practically innumerable even twenty
years ago.
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Additionally, some have criticized the MacArthur Study. Just a decade following its
publication, in the very same scholarly publication where it was praised by the reviewer
above cited, other commentators undertook a published debate with the MacArthur Study
authors, disagreeing with its findings and faulting its research design. E. Fuller Torrey,
M.D. et al., The MacArthur Violence Risk Assessment Study Revisited: Two Views Ten
Years After Its Initial Publication, 59 Psychiatric Servs. 135, 147 (2008).
And if the calculus on applicable factors and predictive techniques could not be
more muddled, the debate -- and development of newer predictive techniques such as
actuarial risk assessment tools -- continues presently:
With the advent of actuarial, statistically driven violence risk assessment
measures and research on their predictive powers, it has been debated
whether they are superior to clinical judgment in assessing violence risk.
Some authors argue that clinical methods without structure are susceptible to
bias, oversight of important risk factors, and lack of reliability and validity.
Others have found actuarial assessments to be limited in that they yield risk
stratification but without incorporating contextual and dynamic shifts
relevant to an individual’s risk presentation. That said, the actuarial
instruments were not intended to design interventions in treatment, and
recent studies have highlighted that although these tools identify risk levels,
they do not provide all that is needed for individualized treatment and release
planning. Still, clinicians in specific settings, especially within correctional
and forensic systems, might use actuarial-type VRAIs to add additional data
in the risk assessments needed for decision making.
Debra A. Pinals, M.D., Violence Risk Assessment in Clinical Settings: Enduring
Challenges and Evolving Lessons, 29 Harv. Rev. Psych. 90, 91 (2021) (noting additionally
that, “[i]ronically, even some structured risk assessment tools, developed and promulgated
as ‘objective’ and ‘unbiased,’ are now being critiqued for being built upon a foundation of
variables fraught with biases and other structural limitations”).
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Dr. Pinals’ work and her citation to an American Psychiatric Association (“APA”)
Resource Document are especially helpful. Her article includes widely accepted clinical
factors for determining dangerousness:
Prototypical, clinically relevant violence-associated risk factors include the
following: past history of violence, prior arrest history, young age at first
arrest, history of substance use, prior fire setting, animal cruelty, risk-taking
behavior, impulsivity, current mental state circumstances, nonadherence to
treatment, access to weapons, dynamics in the household [including the role
of a significant other and/or caretaker (either provocative or not protective)],
viewing oneself as a victim, lack of [compassion and] empathy, overt
intention to harm, and lack of concern over [consequences of] violent act. In
acute settings, hostility and suspiciousness might signal risk of acute
aggression.
Id. at 91 (citing APA Resource Document, Work Group on Psychiatric Violence Risk
Assessment, APA Council on Psychiatry and Law, Alec Buchanan, Renee Binder et al.,
169 Am. J. Psych. 340 (2012) (data supplement attached to article stating, “The APA
published a Task Force report, ‘Clinical Aspects of the Violent Individual,’ in 1974. Since
then, the assessment of violence risk by psychiatrists has assumed increased prominence.
At the same time, significant changes have taken place both in the contexts in which
psychiatrists assess risk and in the techniques that help them do so”) (footnotes omitted)).
There is an additional wrinkle when one considers whether it remains practical to
assemble a list of factors for consideration by the district courts. Civil commitment has
long resided primarily in the hands of the state sovereigns. The Supreme Court has
recognized that “‘[t]he States have traditionally exercised broad power to commit persons
found to be mentally ill.’” United States v. Comstock, 560 U.S. 126, 144 (2010) (quoting
Jackson v. Indiana, 406 U.S. 715, 736 (1972)). Congress recognized as much, given its
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multiple references in Chapter 313 and its predecessor statute’s provisions to having state
authorities assume responsibility for those persons hospitalized after being found not guilty
by reason of insanity and those due for release but suffering from a mental disease. See 18
U.S.C. § 4243(e) (“The Attorney General shall continue periodically to exert all reasonable
efforts to cause such a State to assume such responsibility for the person’s custody, care,
and treatment.”); 18 U.S.C. § 4246(d) (same). The 1983 Report is in accord. See 1983
Report at 250 (noting the primary justification for § 4246 hinged upon uncertainty as to
whether the several states would fulfill their traditional responsibilities in this area:
“Section 4246 covers those circumstances where State authorities will not institute civil
commitment proceedings against a hospitalized defendant whose Federal sentence is about
to expire or against whom all criminal charges have been dropped for reasons related to his
mental condition and who is presently mentally ill. At such a point the responsibility for
the care of insane persons is essentially a function of the States. The Committee intends
that this section be used only in those rare circumstances where a person has no permanent
residence or there are no State authorities willing to accept him for commitment.”).
Even prior to the decision in O’Connor v. Donaldson, 422 U.S. 563 (1975), state
legislatures were busy amending their statutory schemes for involuntary commitment. Id.
at 576 (“In short, a State cannot constitutionally confine without more a nondangerous
individual who is capable of surviving safely in freedom by himself or with the help of
willing and responsible family members or friends.”); see Megan Testa & Sara G. West,
Civil Commitment in the United States, Psychiatry, Oct. 2010, at 33 (discussing the “Shift
To Dangerousness Criteria As The Standard For Civil Commitment” commencing in 1964
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in the District of Columbia) (case adjusted); id. (“Currently, there are only a few states that
do not follow the trend.”). In fact, however, all states use some form of the “danger to self”
and “danger to others” standards when determining whether involuntary commitment is
appropriate. 14 Some states also use “danger to property” in their standard. 15
14
See Ala. Code § 22-52-10.4(a)(2) (West 2022); Alaska Stat. Ann. § 47.30.755(a)
(West 2022); Ariz. Rev. Stat. Ann. § 36-540 (West 2022); Ark. Code Ann. § 20-47-
207(c)(1) (West 2022); Cal. Welf. & Inst. Code § 5250(a) (West 2022); Colo. Rev. Stat.
Ann. § 27-65-113 (West 2022); Conn. Gen. Stat. Ann. § 17a-498(c)(3) (West 2022); Del.
Code Ann. tit.16, § 5002 (West 2022); D.C. Code Ann. § 21-545(b)(2) (West 2022); Fla.
Stat. Ann. § 394.467(1) (West 2022); Ga. Code Ann. § 37-3-1(9.1) (West 2022); Haw.
Rev. Stat. Ann. § 334-60.2 (West 2022); Idaho Code Ann. § 66-329(11) (West 2022); 405
Ill. Comp. Stat. Ann. 5/1-119, 5/3-700 (West 2022); Ind. Code Ann. § 12-26-6-8(a) (West
2022); Iowa Code Ann. § 229.13 (West 2022); Kan. Stat. Ann. § 59-2946(f)(1) (West
2022); Ky. Rev. Stat. Ann. §§ 202A.026(1), 202A.011(2) (West 2022); La. Stat. Ann.
§§ 28:55(E)(1), 28:2(3)-(4) (West 2022); Me. Rev. Stat. Ann. Tit. 34-B, §§ 3801(4-A),
3864(6)(A) (West 2022); Md. Code Ann., Health-Gen. §10-632(e)(2) (West 2022); Mass.
Gen. Laws Ann. Ch. 123, §§ 1, 8(a) (West 2022); Mich. Comp. Laws Ann. § 330.1401(1)
(West 2022); Minn. Stat. Ann. §§ 253B.02 subd. 17a(a), 253B.09(1) (West 2022); Miss.
Code Ann. § 41-21-61(f) (West 2022); Mo. Ann. Stat. §§ 632.005(10), 632.350(5) (West
2022); Mont. Code Ann. § 53-21-126(1) (West 2022); Neb. Rev. Stat. § 71-908 (West
2022); Nev. Rev. Stat. Ann. §§ 433A.0195 (West 2022); N.H. Rev. Stat. Ann. §§ 135-
C:27, 34 (West 2022); N.J. Stat. Ann. § 30:4-27.2(h)-(i) (West 2022); N.M. Stat. Ann. §
43-1-11(M), (N) (West 2022); N.Y. Mental Hyg. Law § 9.01 (West 2022); N.C. Gen. Stat.
Ann. § 122C-3(11) (West 2022); N.D. Cent. Code Ann. §§ 25-03.1-02, 25-03.1-07 (West
2022); Ohio Rev. Code Ann. §§ 5122.01, 5122.15 (West 2022); Okla. Stat. Ann. tit. 43A,
§§ 1-103, 5-415 (West 2022); Or. Rev. Stat. Ann. §§ 426.005(f), 426.130 (West 2022); 50
Pa. Stat. & Cons. Stat. Ann. § 7304 (West 2022); 40.1 R.I. Gen. Laws Ann. §§ 40.1-5-8,
40.1-5-2(7) (West 2022); S.C. Code Ann. §§ 44-17-580, 44-23-10(13) (West 2022); S.D.
Codified Laws §§ 27A-1-1, 27A-1-2 (West 2022); Tenn. Code Ann. §§ 33-6-501, 33-6-
502 (West 2022); Tex. Health & Safety Code Ann. § 574.034 (West 2022); Utah Code
Ann. §§ 62A-15-602, 62A-15-631 (West 2022); Vt. Stat. Ann. tit. 18, §§ 7101, 7611 (West
2022); Va. Code Ann. § 37.2-817 (West 2022); Wash. Rev. Code Ann. §§ 71.05.020,
71.05.240 (West 2022); W. Va. Code Ann. §§ 27-5-4, 27-1-12 (West 2022); Wis. Stat.
Ann. § 51.20 (West 2022); Wyo. Stat. Ann. §§ 25-10-101, 25-10-110 (West 2022).
15
See Alaska Stat. Ann. § 47.30.915(12)(B) (West 2022); Kan. Stat. Ann. § 59-
2946(f)(1) (West 2022); N.J. Stat. Ann. §§ 30:4-27.2(h)-(i) (West 2022); N.C. Gen. Stat.
(Continued)
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As science and experience have coincided across the decades, so too has state law
developed on what factors are predictive of dangerousness. Given the frontline, long-term
expertise developed by the state sovereigns in this difficult and developing area, the factors
they have found helpful justifiably aid our inquiry under § 4246. A nationwide statutory
survey reveals the following factors have drawn state legislative attention:
1. The individual presents a risk of suicide, including past or future threats or
attempts; 16
Ann. § 122C-3(11) (West 2022); N.D. Cent. Code Ann. §§ 25-03.1-02, 25-03.1-07 (West
2022); Wash. Rev. Code Ann. §§ 71.05.020, 71.05.240 (West 2022); W. Va. Code Ann.
§§ 27-5-4, 27-1-12 (West 2022).
16
Ariz. Rev. Stat. Ann. § 36-501(8) (West 2022) (“‘Danger to self’: (a) Means behavior. .
. including attempted suicide or the serious threat thereof . . . .”); Ark. Code Ann. § 20-47-
207(c)(2)(A) (West 2022) (“[A] clear and present danger to himself or herself [can be]
established by demonstrating that: (A) [t]he person . . . has attempted suicide . . . .”); Colo.
Rev. Stat. Ann. § 27-65-102(10) (West 2022) (“‘Danger to self or others’ means: (a) A
person poses a substantial risk of physical harm to the person’s self as manifested by
evidence of recent threats of or attempts at suicide . . . .”); Haw. Rev. Stat. Ann. § 334-1(West 2022) (“‘Dangerous to self’ means the person recently has: (1) Threatened or
attempted suicide . . . .”); Idaho Code Ann. § 66-317(10) (West 2022) (“‘Likely to injure
himself or others’ means: (a) A substantial risk that physical harm will be inflicted by the
proposed patient upon his own person, as evidenced by threats or attempts to commit
suicide . . . .”); Me. Rev. Stat. Ann. tit. 34-B, §§ 3801(4-A) (West 2022) (“‘Likelihood of
serious harm’ means: . . . [a] substantial risk of physical harm to the person as manifested
by recent threats of, or attempts at, suicide.”); Mass. Gen. Laws Ann. ch. 123, § 1 (West
2022) (“‘Likelihood of serious harm’, [is defined as] a substantial risk of physical harm to
the person himself as manifested by evidence of, threats of, or attempts at, suicide.”); Mo.
Ann. Stat. § 632.005(10) (West 2022) (“Likelihood of serious harm” means . . . a
substantial risk that serious physical harm will be inflicted by a person upon his own
person, as evidenced by recent threats, including verbal threats, or attempts to commit
suicide.”); Neb. Rev. Stat. Ann. § 71-908 (West 2022) (“‘Mentally ill and dangerous
person’ means a person who is mentally ill . . . and because of such mental illness . . .
(Continued)
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presents a substantial risk of serious harm to himself or herself within the near future as
manifested by evidence of recent attempts at, or threats of, suicide.”); Nev. Rev. Stat. Ann.
§ 433A.0195 (West 2022) (“A person shall be deemed to present a substantial likelihood
of serious harm to himself or herself . . . if . . . the person is at serious risk of attempting
suicide.”); N.H. Rev. Stat. Ann. § 135-C:27 (West 2022) (“‘Danger to self’ is established
by demonstrating that within 40 days of the completion of the petition, the person has . . .
attempted suicide . . . and there is a likelihood the act or attempted act will recur if
admission is not ordered.”); N.J. Stat. Ann. § 30:4-27.2 (West 2022) (“‘Dangerous to self”
means that by reason of mental illness the person has threatened or attempted suicide.”);
N.M. Stat. Ann. § 43-1-3(M) (West 2022) (“‘[L]ikelihood of serious harm to oneself’
means that it is more likely than not that in the near future the person will attempt to commit
suicide.”); N.Y. Mental Hyg. Law § 9.01 (West 2022) (“‘Likelihood to result in serious
harm’ or ‘likely to result in serious harm’ means (a) a substantial risk of physical harm to
the person as manifested by threats of or attempts at suicide.”); N.C. Gen. Stat. Ann. §
122C-3(11) (West 2022) (“‘Dangerous to self’[means] . . . the individual has attempted
suicide or threatened suicide and that there is a reasonable probability of suicide unless
adequate treatment is given.”); N.D. Cent. Code Ann. § 25-03.1-02 (West 2022) (“Serious
risk of harm” includes “a substantial likelihood” of “[s]uicide, as manifested by suicidal
threats, attempts, or significant depression relevant to suicidal potential . . . .”); Ohio Rev.
Code Ann. § 5122.01 (West 2022) (“Mentally ill person subject to court order” means a
person who “[r]epresents a substantial risk of physical harm to self as manifested by
evidence of threats of, or attempts at, suicide . . . .”); Okla. Stat. Ann. tit. 43A, § 1-103
(West 2022) (“Person requiring treatment” means a person who “poses a substantial risk
of immediate physical harm to self as manifested by evidence or serious threats of or
attempts at suicide . . . .”); 50 Pa. Stat. & Cons. Stat. Ann. § 7304 (West 2022)
(determination of clear and present danger when there is “attempted suicide”); 40.1 R.I.
Gen. Laws Ann. § 40.1-5-2 (West 2022) (“Likelihood of serious harm” means a
“substantial risk of physical harm to the person himself or herself as manifested by
behavior evidencing serious threats of, or attempts at, suicide . . . .”); S.C. Code Ann. § 44-
23-10 (West 2022) (“Likelihood of serious harm” means “a substantial risk of physical
harm to the person himself as manifested by evidence of threats of, or attempts at, suicide
. . . .”); S.D. Codified Laws § 27A-1-1(7) (West 2022) (“Danger to self” means a
“reasonable expectation that the person will inflict serious physical injury upon himself or
herself in the near future . . . as evidenced by . . . the person’s recent acts or omissions
which constitute a danger of suicide . . . .”); Tenn. Code Ann. § 33-6-501 (West 2022)
(Continued)
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2. The individual presents a risk of substantial self-harm, including history and
threats of self-harm; 17
(finding that an individual poses a “substantial likelihood of serious harm” when the
individual “has threatened or attempted suicide”); Utah Code Ann. § 62A-15-602 (West
2022) (“‘Substantial danger’ means that due to mental illness, an individual is at serious
risk of . . . suicide . . . .”); Vt. Stat. Ann. tit. 18, § 7101 (West 2022) (“A danger of harm to
himself or herself may be shown by establishing that . . . he or she has threatened or
attempted suicide . . . .”); Wash. Rev. Code Ann. § 71.05.020 (West 2022) (“Likelihood of
serious harm” means there is a substantial risk that “[p]hysical harm will be inflicted by a
person upon his or her own person, as evidenced by threats or attempts to commit suicide
or inflict physical harm on oneself . . . .”); W. Va. Code Ann. § 27-1-12 (West 2022)
(finding of dangerousness if the “individual has threatened or attempted suicide”); Wis.
Stat. Ann. § 51.20 (West 2022) (finding of dangerousness when there is “evidence of recent
threats of or attempts at suicide”); Wyo. Stat. Ann. § 25-10-101 (West 2022 (finding of
dangerousness when there is “evidence of recent threats of or attempts at suicide”).
17
Ala. Code § 22-52-10.4(a)(2) (West 2022) (“Respondent poses a real and present threat
of substantial harm to self.”); Alaska Stat. Ann. § 47.30.915(12)(A) (West 2022)
(“‘[L]ikely to cause serious harm’ means a person who (A) poses a substantial risk of
bodily harm to that person’s self, as manifested by recent behavior causing, attempting, or
threatening that harm . . . .”); Ariz. Rev. Stat. Ann. § 36-501(8)(a)(i) (West 2022)
(“‘Danger to self’: (a) Means behavior that, as a result of a mental disorder: (i) Constitutes
a danger of inflicting serious physical harm on oneself . . . .”); Ark. Code Ann. § 20-47-
207(c)(2) (West 2022) (“‘[A] clear and present danger to himself or herself’ is established
by demonstrating that: (A) The person has inflicted serious bodily injury on himself or
herself or has attempted . . . serious self-injury, and there is a reasonable probability that
the conduct will be repeated if admission is not ordered; [or] (B) The person has threatened
to inflict serious bodily injury on himself or herself, and there is a reasonable probability
that the conduct will occur if admission is not ordered . . . .”); Cal. Welf. & Inst. Code §
5250(a) (West 2022) (“If a person is detained . . . and has received an evaluation, he or she
may be certified for not more than 14 days of intensive treatment related to the mental
health disorder or impairment by chronic alcoholism, . . . if . . . the person is, as a result of
a mental health disorder or impairment by chronic alcoholism, a danger to . . . himself or
herself . . . .”); Colo. Rev. Stat. Ann. § 27-65-102(10) (West 2022) (“‘Danger to the
person’s self or others’ means: (a) A person poses a substantial risk of physical harm to the
person’s self as manifested by evidence of recent threats of . . . serious bodily harm to
himself or herself . . . .”); Conn. Gen. Stat. Ann. § 17a-495(b) (West 2022) (“For the
purpose of [Section 17a-498] . . . ‘dangerous to himself or herself . . .’ means there is a
(Continued)
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substantial risk that physical harm will be inflicted by an individual upon his or her own
person . . . .”); Del. Code Ann. tit. 16, § 5001(4) (West 2022) (“‘Dangerous to self’ means
that by reason of mental condition there is a substantial likelihood that the person will
imminently sustain serious bodily harm to oneself. This determination shall take into
account a person’s history, recent behavior, and any recent act or threat.”); D.C. Code Ann.
§ 21-545(b)(2) (West 2022) (“If the Court or jury finds that the person is mentally ill and,
because of that mental illness, is likely to injure himself . . . if not committed, the Court
may order the person’s commitment . . . .”); Fla. Stat. Ann. § 394.467(1) (West 2022) (“A
person may be ordered for involuntary inpatient placement for treatment upon a finding . .
. that . . . [t]here is substantial likelihood that in the near future he or she will inflict serious
bodily harm on self . . . , as evidenced by recent behavior causing, attempting, or
threatening such harm . . . .”); Ga. Code Ann. § 37-3-1(9.1) (West 2022) (“‘Inpatient’
means a person who is mentally ill and: (A)(i) Who presents a substantial risk of imminent
harm to that person . . . , as manifested by either recent overt acts or recent expressed threats
of violence which present a probability of physical injury to that person . . . .”); Haw. Rev.
Stat. Ann. § 334-1 (West 2022) (“‘Dangerous to self’ means the person recently has: (1)
Threatened or attempted . . . serious bodily harm . . . .”); Idaho Code Ann. § 66-317(10)
(West 2022) (“‘Likely to injure himself . . .’ means . . . (a) A substantial risk that physical
harm will be inflicted by the proposed patient upon his own person, as evidenced by threats
or attempts to . . . inflict physical harm on himself . . . .”); 405 Ill. Comp. Stat. Ann. 5/1-
119(1) (West 2022) (“‘Person subject to involuntary admission on an inpatient basis’
means: (1) A person with mental illness who because of his or her illness is reasonably
expected, unless treated on an inpatient basis, to engage in conduct placing such person . .
. in physical harm . . . .”); Ind. Code Ann. § 12-7-2-53 (West 2022) (“‘Dangerous’, for
purposes of [Section] 12-26, means a condition in which an individual as a result of mental
illness, presents a substantial risk of: (1) suffering self-caused harm . . . .”); Iowa Code
Ann. § 229.1(20) (West 2022) (“‘Seriously mentally impaired’ or ‘serious mental
impairment’ describes the condition of a person with mental illness . . . and who because
of that illness . . . [i]s likely to physically injure the person’s self . . . if allowed to remain
at liberty without treatment.”); Kan. Stat. Ann. § 59-2946(f)(3) (West 2022) (“‘Likely to
cause harm to self . . . ’ means that the person, by reason of the person’s mental disorder:
(A) Is likely, in the reasonably foreseeable future, to cause substantial physical injury or
physical abuse to self . . . as evidenced by behavior threatening, attempting or causing such
injury . . . .”); Me. Rev. Stat. Ann. tit. 34-B, § 3801(4-A) (West 2022) (“‘Likelihood of
serious harm’ means: . . . [a] substantial risk of physical harm to the person as manifested
by recent threats of, or attempts at, . . . serious self-inflicted harm.”); Mass. Gen. Laws
Ann. ch. 123, § 1 (West 2022) (“‘Likelihood of serious harm’, [is defined as] a substantial
risk of physical harm to the person himself as manifested by evidence of, threats of, or
attempts at, . . . serious bodily harm.”); Mich. Comp. Laws Ann. § 330.1401(1) (West
2022) (“‘Person requiring treatment’ means . . . an individual who has mental illness, and
who as a result of that mental illness can reasonably be expected within the near future to
(Continued)
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intentionally or unintentionally seriously physically injure himself . . . and who has
engaged in an act or acts or made significant threats that are substantially supportive of the
expectation.”); Minn. Stat. Ann. § 253B.02 subd. 17a(a) (West 2022) (“A ‘person who
poses a risk of harm due to a mental illness’ means any person who has [a mental illness]
and who, due to this impairment, poses a substantial likelihood of physical harm to self . .
. as demonstrated by . . . a recent attempt or threat to physically harm self.”); Mo. Ann.
Stat. § 632.005(10) (West 2022) (“‘Likelihood of serious harm’ means . . . a substantial
risk that serious physical harm will be inflicted by a person upon his own person, as
evidenced by recent threats, including verbal threats, or attempts to . . . inflict physical
harm on himself . . . [or] patterns of behavior that historically have resulted in serious harm
previously being inflicted by a person upon himself.”); Mont. Code Ann. § 53-21-126(1)
(West 2022) (“In determining whether the respondent requires commitment . . . the court
shall consider . . . whether the respondent has recently, because of a mental disorder and
through an act or omission, caused self-injury . . . [and] whether . . . there is an imminent
threat of injury to the respondent . . . because of the respondent’s acts or omissions.”); Neb.
Rev. Stat. Ann. § 71-908 (West 2022) (“‘Mentally ill and dangerous person’ means a
person who is mentally ill . . . and because of such mental illness . . . presents a substantial
risk of serious harm to himself or herself within the near future as manifested by evidence
of recent attempts at, or threats of . . . serious bodily harm.”); Nev. Rev. Stat. Ann. §
433A.0195 (West 2022) (“A person shall be deemed to present a substantial likelihood of
serious harm to himself or herself . . . if . . . the person is at serious risk of . . . causing
bodily injury to himself or herself.”); N.H. Rev. Stat. Ann. § 135-C:27 (West 2022)
(“‘Danger to self’ is established by demonstrating that within 40 days of the completion of
the petition, the person has inflicted serious bodily injury on himself or has attempted . . .
serious self-injury and there is a likelihood the act or attempted act will recur if admission
is not ordered . . . [or] the person has threatened to inflict serious bodily injury on himself
and there is likelihood that an act or attempt of serious self-injury will occur.”); N.J. Stat.
Ann. § 30:4-27.2 (West 2022) (“‘Dangerous to self” means that by reason of mental illness
the person has threatened or attempted . . . serious bodily harm.”); N.M. Stat. Ann. § 43-1-
3(M) (West 2022) (“‘[L]ikelihood of serious harm to oneself’ means that it is more likely
than not that in the near future the person . . . will cause serious bodily harm to the person’s
self by violent or other self-destructive means, including grave passive neglect.”); N.Y.
Mental Hyg. Law § 9.01 (West 2022) (“‘Likelihood to result in serious harm’ or ‘likely to
result in serious harm’ means (a) a substantial risk of physical harm to the person as
manifested by threats of or attempts at . . . serious bodily harm or other conduct
demonstrating that the person is dangerous to himself or herself.”); N.C. Gen. Stat. Ann. §
122C-3(11) (West 2022) (“‘Dangerous to self’[means] . . . the individual has mutilated
himself or herself and has attempted to mutilate himself or herself and that there is a
reasonable probability of self-mutilation unless adequate treatment is given.”); Ohio Rev.
Code Ann. § 5122.01 (West 2022) (“Mentally ill person subject to court order” means a
person who “[r]epresents a substantial risk of physical harm to self as manifested by
(Continued)
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3. The individual presents a risk of inflicting substantial bodily harm to others,
including history and threats; 18
evidence of threats of, or attempts at, . . . serious self-inflicted bodily harm . . . .”); Okla.
Stat. Ann. tit. 43A, § 1-103 (West 2022) (“Person requiring treatment” means a person who
“poses a substantial risk of immediate physical harm to self as manifested by evidence or
serious threats of or attempts at . . . significant self-inflicted bodily harm . . . .”); 50 Pa.
Stat. & Cons. Stat. Ann. § 7304 (West 2022) (determination of clear and present danger
when there is “self-mutilation”); S.C. Code Ann. § 44-23-10 (West 2022) (“Likelihood of
serious harm” means “a substantial risk of physical harm to the person himself as
manifested by evidence of threats of, or attempts at, . . . serious bodily harm . . . .”); S.D.
Codified Laws § 27A-1-1(7) (West 2022) (“Danger to self” means a “reasonable
expectation that the person will inflict serious physical injury upon himself or herself in
the near future . . . as evidenced by . . . the person’s recent acts or omissions which
constitute a danger of . . . self-inflicted serious physical injury.”); Tenn. Code Ann. § 33-
6-501 (West 2022) (finding that an individual poses a “substantial likelihood of serious
harm” when the individual “has threatened or attempted . . . to inflict serious bodily harm”
to oneself); Tex. Health & Safety Code Ann. § 574.034 (West 2022) (finding
dangerousness of the individual “is likely to cause serious harm to” oneself); Utah Code
Ann. § 62A-15-602 (West 2022) (“‘Substantial danger’ means that due to mental illness,
an individual is at serious risk of . . . serious bodily self-injury . . . .”); Vt. Stat. Ann. tit.
18, § 7101 (West 2022) (“A danger of harm to himself or herself may be shown by
establishing that . . . he or she has threatened or attempted . . . serious bodily harm . . . .”);
Va. Code Ann. § 37.2-817 (West 2022) (finding of dangerousness when “there is a
substantial likelihood that, as a result of mental illness, the person will, in the near future,
. . . cause serious physical harm to himself”); Wash. Rev. Code Ann. § 71.05.020 (West
2022) (“Likelihood of serious harm” means there is a substantial risk that “[p]hysical harm
will be inflicted by a person upon his or her own person, as evidenced by threats or attempts
to . . . inflict physical harm on oneself . . . .”); W. Va. Code Ann. § 27-1-12 (West 2022)
(finding of dangerousness if the “individual has threatened or attempted . . . serious bodily
harm to himself or herself”); Wis. Stat. Ann. § 51.20 (West 2022) (finding of
dangerousness when there is “evidence of recent threats of or attempts at . . . serious bodily
harm); Wyo. Stat. Ann. § 25-10-101 (West 2022) (finding of dangerousness when there is
“evidence of recent threats of or attempts at . . . serious bodily harm”).
18
Ala. Code § 22-52-10.4(a)(2) (West 2022) (“[R]espondent poses a real and present threat
of substantial harm to . . . others . . . .”); Alaska Stat. Ann. § 47.30.915(12(B)) (West 2022)
(“‘[L]ikely to cause serious harm’ means a person who . . . (B) poses a substantial risk of
harm to others as manifested by recent behavior causing, attempting, or threatening harm,
and is likely in the near future to cause physical injury, physical abuse, or substantial
property damage to another person . . . .”); Ariz. Rev. Stat. Ann. § 36-501(7) (West 2022)
(Continued)
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(“‘Danger to others’ means . . . as a result of the person’s mental disorder the person’s
continued behavior can reasonably be expected, on the basis of competent medical opinion,
to result in serious physical harm.”); Ark. Code Ann. § 20-47-207(c)(3) (West 2022) (“As
used in this subsection, ‘a clear and present danger to others’ is established by
demonstrating that the person has inflicted, attempted to inflict, or threatened to inflict
serious bodily harm on another, and there is a reasonable probability that the conduct will
occur if admission is not ordered.”); Cal. Welf. & Inst. Code § 5250(a) (West 2022) (“The
professional staff of the agency or facility providing evaluation services has analyzed the
person’s condition and has found the person is, as a result of a mental health disorder or
impairment by chronic alcoholism, a danger to others . . . .”); Colo. Rev. Stat. Ann. § 27-
65-102(10) (West 2022) (“‘Danger to . . . others’ means: . . . (b) A person poses a
substantial risk of physical harm to another person or persons, as manifested by evidence
of recent homicidal or other violent behavior by the person in question . . . .”); Conn. Gen.
Stat. Ann. § 17a-495(b) (West 2022) (“For the purpose of [Section 17a-498] . . . ‘dangerous
to . . . others’ means there is a substantial risk that physical harm will be inflicted by an
individual upon . . . another person . . . .”); Del. Code Ann. tit. 16, § 5001(3) (West 2022)
(“‘Dangerous to others’ means that by reason of mental condition there is a substantial
likelihood that the person will inflict serious bodily harm upon another person within the
immediate future. This determination shall take into account a person’s history, recent
behavior and any recent act or threat.”); D.C. Code Ann. § 21-545(b)(2) (West 2022) (“If
the Court or jury finds that the person is mentally ill and, because of that mental illness, is
likely to injure . . . others if not committed, the Court may order the person’s commitment
. . . .”); Fla. Stat. Ann. § 394.467(1) (West 2022) (“A person may be ordered for involuntary
inpatient placement for treatment upon a finding . . . that: (a) He or she has a mental illness
and because of his or her mental illness . . . [t]here is substantial likelihood that in the near
future he or she will inflict serious bodily harm on . . . others, as evidenced by recent
behavior causing, attempting, or threatening such harm . . . .”); Ga. Code Ann. § 37-3-
1(9.1) (West 2022) (“‘Inpatient’ means a person who is mentally ill and: (A)(i) Who
presents a substantial risk of imminent harm to . . . others, as manifested by either recent
overt acts or recent expressed threats of violence which present a probability of physical
injury to . . . other persons . . . .”); Haw. Rev. Stat. Ann. § 334-1 (West 2022) (“‘Dangerous
to others’ means likely to do substantial physical or emotional injury on another, as
evidenced by a recent act, attempt or threat.”); Idaho Code Ann. § 66-317(10) (West 2022)
(“‘Likely to injure . . . others’ means . . . (b) substantial risk that physical harm will be
inflicted by the proposed patient upon another as evidenced by behavior which has caused
(Continued)
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such harm . . . .”); 405 Ill. Comp. Stat. Ann. 5/1-119(1) (West 2022) (“A person with mental
illness who because of his or her illness is reasonably expected, unless treated on an
inpatient basis, to engage in conduct placing . . . another in physical harm . . . .”); Ind. Code
Ann. § 12-7-2-53(a)(2) (West 2022) (“‘Dangerous’, for purposes of [Section] 12-26, means
a condition in which an individual as a result of mental illness, presents a substantial risk
of: . . . harming others.”); Iowa Code Ann. § 229.1(20) (West 2022) (“‘Seriously mentally
impaired’ or ‘serious mental impairment’ describes the condition of a person with mental
illness and because of that illness . . . is likely to physically injure . . . others if allowed to
remain at liberty without treatment . . . .”); Kan. Stat. Ann. § 59-2946(f) (West 2022)
(“‘Likely to cause harm to . . . others’ means that the person, by reason of the person’s
mental disorder: (A) Is likely, in the reasonably foreseeable future, to cause substantial
physical injury or physical abuse to . . . others . . . as evidenced by behavior threatening,
attempting or causing such injury [or] abuse . . . .”); Me. Rev. Stat. Ann. tit. 34-B, § 3801(4-
A) (West 2022) (“‘Likelihood of serious harm’ means: . . . [a] substantial risk of physical
harm to other persons as manifested by recent homicidal or violent behavior.”); Mass. Gen.
Laws Ann. ch. 123, § 1 (West 2022) (“‘Likelihood of serious harm’, [defined as] . . . a
substantial risk of physical harm to other persons as manifested by evidence of homicidal
or other violent behavior.”); Mich. Comp. Laws Ann. § 330.1401(1) (West 2022) (“‘Person
requiring treatment’ means . . . an individual who has mental illness, and who as a result
of that mental illness can reasonably be expected within the near future to intentionally or
unintentionally seriously physically injure . . . another individual . . . and who has engaged
in an act or acts or made significant threats that are substantially supportive of the
expectation.”); Minn. Stat. Ann. § 253B.02 subd. 17a(a) (West 2022) (“A ‘person who
poses a risk of harm due to a mental illness’ means any person who has [a mental illness]
and who, due to this impairment, poses a substantial likelihood of physical harm to . . .
others as demonstrated by . . . a recent attempt or threat to physically harm . . . others.”);
Miss. Code Ann. § 41-21-61(f) (West 2022) (“‘Person with mental illness’ means any
person who has a substantial psychiatric disorder . . . which . . . poses a substantial
likelihood of physical harm to . . . others as demonstrated by a recent attempt or threat to
physically harm . . . others.”); Mo. Ann. Stat. § 632.005(10) (West 2022) (“‘Likelihood of
serious harm’” means . . . a substantial risk that serious physical harm will be inflicted by
a person upon another as evidenced by recent overt acts, behavior or threats, including
verbal threats, which have caused such harm or which would place a reasonable person in
reasonable fear of sustaining such harm . . . [or] patterns of behavior that historically have
resulted in physical harm previously being inflicted by a person upon another person.”);
(Continued)
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Mont. Code Ann. 53-21-126(1) (West 2022) (“In determining whether the respondent
requires commitment . . . the court shall consider . . . whether the respondent has recently,
because of a mental disorder and through an act or omission, caused . . . injury to others . .
. [and] whether . . . there is an imminent threat of injury to . . . others . . . because of the
respondent’s acts or omissions.”); Neb. Rev. Stat. Ann. § 71-908 (West 2022) (“‘Mentally
ill and dangerous person’ means a person who is mentally ill . . . and because of such mental
illness . . . presents a substantial risk of serious harm to another person or persons within
the near future as manifested by evidence of recent violent acts or threats of violence or by
placing others in reasonable fear of such harm.”); Nev. Rev. Stat. Ann. § 433A.0195 (West
2022) (“A person shall be deemed to present a substantial likelihood of serious harm to . .
. others if . . . the person is at serious risk of . . . attempting . . . homicide [or] causing bodily
injury to . . . others.”); N.H. Rev. Stat. Ann. § 135-C:27 (West 2022) (“‘Danger to others’
is established by demonstrating that within 40 days of the completion of the petition, the
person has inflicted, attempted to inflict, or threatened to inflict serious bodily harm on
another.”); N.M. Stat. Ann. § 43-1-3(N) (West 2022) (“‘[L]ikelihood of serious harm to
others’ means that it is more likely than not that in the near future a person will inflict
serious, unjustified bodily harm on another person or commit a criminal sexual offense, as
evidenced by behavior causing, attempting or threatening such harm, which behavior gives
rise to a reasonable fear of such harm from the person.”); N.Y. Mental Hyg. Law § 9.01(West 2022) (“‘[L]ikelihood to result in serious harm’ or ‘likely to result in serious harm’
means a substantial risk of physical harm to other persons manifested by homicidal or other
violent behavior.”); N.C. Gen. Stat. Ann. § 122C-3(11) (West 2022) (“‘Dangerous to
others’ [means] within the relevant past, the individual has inflicted or attempted to inflict
or threatened to inflict serious bodily harm on another, or has acted in such a way as to
create a substantial risk of serious bodily harm to another . . . that there is a reasonable
probability that this conduct will be repeated.”); N.D. Cent. Code Ann. § 25-03.1-02 (West
2022) (finding of dangerousness when there is a substantial likelihood of “[k]illing or
inflicting serious bodily harm on another individual . . . , as manifested by acts or threats”);
Ohio Rev. Code Ann. § 5122.01 (West 2022) (“Mentally ill person subject to court order”
means a person who “[r]epresents a substantial risk of physical harm to others as
manifested by evidence of recent homicidal or other violent behavior, [or] evidence of
recent threats that place another in reasonable fear of violent behavior and serious physical
harm . . . .”); Okla. Stat. Ann. tit. 43A, § 1-103 (West 2022) (“Person requiring treatment”
means a person who “poses a substantial risk of immediate physical harm to another person
or persons as manifested by evidence of violent behavior directed toward another person
(Continued)
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or persons . . . .”); 50 Pa. Stat. & Cons. Stat. Ann. § 7304 (West 2022) (determination of
clear and present danger when there is “serious bodily harm to others”); 40.1 R.I. Gen.
Laws Ann. § 40.1-5-2 (West 2022) (“Likelihood of serious harm” means a “substantial risk
of physical harm to other persons as manifested by behavior or threats evidencing
homicidal or other violent behavior . . . .”); S.C. Code Ann. § 44-23-10 (West 2022)
(“Likelihood of serious harm” means “a substantial risk of physical harm to other persons
as manifested by evidence of homicidal or other violent behavior and serious harm to them
. . . .”); S.D. Codified Laws § 27A-1-1(7) (West 2022) (“Danger to others” means a
“reasonable expectation that the person will inflict serious physical injury upon another
person in the near future . . . .”); Tenn. Code Ann. § 33-6-501 (West 2022) (finding that
an individual poses a “substantial likelihood of serious harm” when the individual “has
threatened or attempted homicide or other violent behavior” or “has placed others in
reasonable fear of violent behavior and serious physical harm to them”); Tex. Health &
Safety Code Ann. § 574.034 (West 2022) (finding dangerousness of the individual “is
likely to cause serious harm to others”); Utah Code Ann. § 62A-15-602 (West 2022)
(“‘Substantial danger’ means that due to mental illness, an individual is at serious risk of .
. . causing or attempting to cause serious bodily injury to another individual . . . .”); Vt.
Stat. Ann. tit. 18, § 7101 (West 2022) (finding of dangerousness when it is established that
an individual “has inflicted or attempted to inflict bodily harm on another” or “by his or
her threats or actions he or she has placed others in reasonable fear of physical harm to
themselves”); Va. Code Ann. § 37.2-817 (West 2022) (finding of dangerousness when
“there is a substantial likelihood that, as a result of mental illness, the person will, in the
near future, . . . cause serious physical harm to . . . others as evidenced by recent behavior
causing, attempting, or threatening harm”); Wash. Rev. Code Ann. § 71.05.020 (West
2022) (“Likelihood of serious harm” means there is a substantial risk that “physical harm
will be inflicted by a person upon another, as evidenced by behavior which has caused such
harm or which places another person or persons in reasonable fear of sustaining such harm
. . . .”); W. Va. Code Ann. § 27-1-12 (West 2022) (finding of dangerousness if the
“individual has inflicted or attempted to inflict bodily harm on another” or “by threat or
action, has placed others in reasonable fear of physical harm to themselves”); Wis. Stat.
Ann. § 51.20 (West 2022) (finding of dangerousness when there is “evidence of recent
homicidal or other violent behavior, or by evidence that others are placed in reasonable
fear of violent behavior and serious physical harm to them, as evidenced by a recent overt
act, attempt or threat to do serious physical harm”); Wyo. Stat. Ann. § 25-10-101 (West
2021) (finding of dangerousness when there is evidence of “a recent overt homicidal act,
(Continued)
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4. The individual’s behavior places others in reasonable fear of substantial bodily
harm; 19
5. The individual is unable to protect and care for himself, including inability to
provide his basic physical needs; 20
attempt or threat or other violent act, attempt or threat which places others in reasonable
fear of serious physical harm to them”).
19
Colo. Rev. Stat. Ann. § 27-65-102(10) (West 2022) (“Danger to the person’s self
or others’ [includes] . . . evidence that others are placed in reasonable fear of violent
behavior and serious physical harm to them, as evidenced by a recent overt act, attempt, or
threat to do serious physical harm by the person in question.”); Idaho Code Ann. § 66-
317(10)(b) (West 2022) (“‘Likely to injure himself or others’ [includes] . . . [a] substantial
risk that physical harm will be inflicted by the proposed patient upon another as evidenced
by behavior . . . that places another person or persons in reasonable fear of sustaining such
harm . . . .”); 405 Ill. Comp. Stat. Ann. 5/1-119(1) (West 2022) (finding of dangerousness
when,“because of his or her illness, [he or she] is reasonably expected, unless treated on
an inpatient basis, to engage in conduct placing . . . another in . . . reasonable expectation
of being physically harmed”); Me. Rev. Stat. Ann. tit. 34-B, § 3801(4-A) (West 2022)
(“‘Likelihood of serious harm’ means: . . . [a] substantial risk of physical harm to other
person as manifested by . . . recent conduct placing others in reasonable fear of serious
physical harm.”); Mass. Gen. Laws Ann. ch. 123, § 1 (West 2022) (“‘Likelihood of serious
harm’, [means] . . . a substantial risk of physical harm to other persons as manifested by . .
. evidence that others are placed in reasonable fear of violent behavior and serious physical
harm to them.”); N.Y. Mental Hyg. Law § 9.01 (West 2022) (“‘Likelihood to result in
serious harm’ or ‘likely to result in serious harm’ means a substantial risk of physical harm
to other persons manifested by homicidal or other violent behavior by which others are
placed in reasonable fear of serious physical harm.”).
20
Alaska Stat. Ann. § 47.30.915(9)(A) (West 2022) (“‘[G]ravely disabled’ means a
condition in which a person as a result of mental illness (A) is in danger of physical harm
arising from such complete neglect of basic needs for food, clothing, shelter, or personal
safety as to render serious accident, illness, or death highly probable if care by another is
not taken . . . .”); Ariz. Rev. Stat. Ann. § 36-501(15) (West 2022) (“‘Grave disability’
means a condition evidenced by behavior in which a person, as a result of a mental disorder,
is likely to come to serious physical harm or serious illness because the person is unable to
provide for the person’s own basic physical needs.”); Ark. Code Ann. § 20-47-207(c)(2)(C)
(West 2022) (“The person’s recent behavior or behavior history demonstrates that he or
she so lacks the capacity to care for his or her own welfare that there is a reasonable
(Continued)
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probability of death, serious bodily injury, or serious physical or mental debilitation if
admission is not ordered . . . .”); Cal. Welf. & Inst. Code § 5008 (West 2022) (“For purposes
of [Section 5250] ‘gravely disabled’ means a condition in which a person, as a result of
impairment by chronic alcoholism, is unable to provide for his or her basic personal needs
for food, clothing, or shelter.”); Colo. Rev. Stat. Ann.§ 24-65-102(17) (West 2022)
(“‘Gravely disabled’ means a condition in which a person, as a result of a mental health
disorder, is incapable of making informed decisions about or providing for the person’s
essential needs without significant supervision and assistance from other people. As a result
of being incapable of making these informed decisions, a person who is gravely disabled
is at risk of substantial bodily harm, dangerous worsening of any concomitant serious
physical illness, significant psychiatric deterioration, or mismanagement of the person’s
essential needs that could result in substantial bodily harm.”); Conn. Gen. Stat. Ann. § 17a-
495(b) (West 2022) (“For the purpose of [Section 17a-498] . . . ‘gravely disabled’ means
that a person, as a result of mental or emotional impairment, is in danger of serious harm
as a result of an inability or failure to provide for his or her own basic human needs such
as essential food, clothing, shelter or safety . . . .”); Fla. Stat. Ann. § 394.467(1) (West
2022) (“He or she is incapable of surviving alone or with the help of willing and responsible
family or friends, including available alternative services, and, without treatment, is likely
to suffer from neglect or refuse to care for himself or herself, and such neglect or refusal
poses a real and present threat of substantial harm to his or her well-being . . . .”); Ga. Code
Ann. § 37-3-1(9.1) (West 2022) (“‘Inpatient’ means a person who is mentally ill and: . . .
(A)(ii) Who is so unable to care for that person’s own physical health and safety as to create
an imminently life-endangering crisis . . . .”); Haw. Rev. Stat. Ann. § 334-1 (West 2022)
(“‘Dangerous to self’ means the person recently has: . . . (2) Behaved in such a manner as
to indicate that the person is unable, without supervision and the assistance of others, to
satisfy the need for nourishment, essential medical care, including treatment for a mental
illness, shelter or self-protection, so that it is probable that death, substantial bodily injury,
or serious physical debilitation or disease will result unless adequate treatment is
afforded.”); Idaho Code Ann. § 66-317(12) (West 2022) (“‘Gravely disabled’ means the
condition a person who, as the result of mental illness, has demonstrated an inability to: (a)
Attend to basic personal needs, such as nourishment, or essential clothing, medical care,
shelter or safety . . . .”); 405 Ill. Comp. Stat. Ann. 5/1-119(2) (West 2022) (“‘Person subject
to involuntary admission on an inpatient basis’ means: . . . (2) A person with mental illness
who because of his or her illness is unable to provide for his or her basic physical needs so
as to guard himself or herself from serious harm without the assistance of family or others,
unless treated on an inpatient basis . . . .”); Ind. Code Ann. § 12-7-2-96 (West 2022)
(“‘Gravely disabled’”, for purposes of [section] 12-26, means a condition in which an
individual, as a result of mental illness, is in danger of coming to harm because the
individual: (1) is unable to provide for that individual’s food, clothing, shelter, or other
essential human needs; or (2) has a substantial impairment or an obvious deterioration of
that individual’s judgment, reasoning, or behavior that results in the individual’s inability
(Continued)
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to function independently.”); Iowa Code Ann. § 229.1(20) (West 2022) (“‘Seriously
mentally impaired’ or ‘serious mental impairment’ describes the condition of a person with
mental illness and because of that illness lacks sufficient judgment to make responsible
decisions with respect to the person’s hospitalization or treatment, and . . . [i]s unable to
satisfy the person’s needs for nourishment, clothing, essential medical care, or shelter so
that it is likely that the person will suffer physical injury, physical debilitation, or death . .
. .”); Kan. Stat. Ann. § 59-2946(f)(3) (West 2022) (“‘Likely to cause harm to self or others’
means that the person, by reason of the person’s mental disorder: . . . (B) is substantially
unable, except for reason of indigency, to provide for any of the person’s basic needs, such
as food, clothing, shelter, health or safety, causing a substantial deterioration of the
person’s ability to function on the person’s own.”); Mass. Gen. Laws Ann. ch. 123, § 1(West 2022) (“‘Likelihood of serious harm,’ [means] . . . a substantial risk of physical
impairment or injury to the person himself as manifested by evidence that such person’s
judgment is so affected that he is unable to protect himself in the community.”); Mich.
Comp. Laws Ann. § 330.1401(1) (West 2022) (“‘Person requiring treatment’ means . . . an
individual who has mental illness, and who as a result of that mental illness is unable to
attend to those of his or her basic physical needs such as food, clothing, or shelter that must
be attended to in order for the individual to avoid serious harm in the near future, and who
has demonstrated that inability by failing to attend to those basic physical needs.”); Minn.
Stat. Ann. § 253B.02 subd. 17a(a) (West 2022) (“A ‘person who poses a risk of harm due
to a mental illness’ means any person who has [a mental illness] and who, due to this
impairment, poses a substantial likelihood of physical harm to self . . . as demonstrated by
. . . a failure to obtain necessary food, clothing, shelter, or medical care as a result of the
impairment; [or] an inability for reasons other than indigence to obtain necessary food,
clothing, shelter, or medical care as a result of the impairment and it is more probable than
not that the person will suffer substantial harm, significant psychiatric deterioration or
debilitation, or serious illness, unless appropriate treatment and services are provided.”);
Miss. Code Ann. § 41-21-61(f) (West 2022) (“‘Person with mental illness’ means any
person who has a substantial psychiatric disorder . . . which . . . poses a substantial
likelihood of physical harm to himself . . . as demonstrated by . . . a failure to provide
necessary food, clothing, shelter or medical care for himself, as a result of the
impairment.”); Mo. Ann. Stat. § 632.005(10) (West 2022) (“‘Likelihood of serious harm’”
means . . . a substantial risk that serious physical harm to a person will result or is occurring
because of an impairment in his capacity to make decisions with respect to his
hospitalization and need for treatment as evidenced by his current mental disorder or
mental illness which results in an inability to provide for his own basic necessities of food,
clothing, shelter, safety or medical care or his inability to provide for his own mental health
care which may result in a substantial risk of serious physical harm . . . [or] patterns of
behavior [of the same previously occuring].”); Mont. Code Ann. § 53-21-126(1)(a) (West
2022) (“In determining whether the respondent requires commitment, . . . the court shall
consider . . . whether the respondent, because of a mental disorder, is substantially unable
(Continued)
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to provide for the respondent’s own basic needs of food, clothing, shelter, health, or
safety.”); Neb. Rev. Stat. Ann. § 71-908 (West 2022) (“‘Mentally ill and dangerous person’
means a person who is mentally ill . . . and because of such mental illness . . . presents a
substantial risk of serious harm to himself or herself within the near future as manifested
by . . . evidence of inability to provide for his or her basic human needs, including food,
clothing, shelter, essential medical care, or personal safety.”); Nev. Rev. Stat. Ann. §
433A.0195 (West 2022) (“A person shall be deemed to present a substantial likelihood of
serious harm to himself or herself . . . if . . . the person is at serious risk of . . . incurring a
serious injury, illness or death resulting from complete neglect of basic needs for food,
clothing, shelter or personal safety.”); N.J. Stat. Ann. § 30:4-27.2 (West 2022)
(“‘Dangerous to self’ means that by reason of mental illness the person has . . . behaved in
such a manner as to indicate that the person is unable to satisfy his need for nourishment,
essential medical care or shelter, so that it is probable that substantial bodily injury, serious
physical harm, or death will result within the reasonably foreseeable future.”); N.C. Gen.
Stat. Ann. § 122C-3(11) (West 2022) (“‘Dangerous to self’ [means] . . . the individual
would be unable, without care, supervision, and the continued assistance of others not
otherwise available, to exercise self-control, judgment, and discretion in the conduct of the
individual’s daily responsibilities and social relations, or to satisfy the individual’s need
for nourishment, personal or medical care, shelter, or self-protection and safety.”); N.D.
Cent. Code Ann. § 25-03.1-02 (West 2022) (“Serious risk of harm” includes “[s]ubstantial
deterioration in physical health, substantial injury, disease, or death, based upon recent
poor self-control or judgment in providing one’s shelter, nutrition, or personal care . . . .”);
Ohio Rev. Code Ann. § 5122.01 (West 2022) (“Mentally ill person subject to court order”
means a person who “[r]epresents a substantial and immediate risk of serious physical
impairment or injury to self as manifested by evidence that the person is unable to provide
for and is not providing for the person’s basic physical needs because of the person’s
mental illness and that appropriate provision for those needs cannot be made immediately
available in the community . . . .”); Okla. Stat. Ann. tit. 43A, § 1-103 (West 2022) (“Person
requiring treatment” means a person who “poses a substantial risk of immediate serious
physical injury to self or death as manifested by evidence that the person is unable to
provide for and is not providing for his or her basic physical needs.”); Or. Rev. Stat. Ann.
§ 426.005 (West 2022) (finding that involuntary commitment is warranted when the
individual is “[u]nable to provide for basic personal needs that are necessary to avoid
serious physical harm in the near future, and is not receiving such care as is necessary to
avoid such harm”); 50 Pa. Stat. & Cons. Stat. Ann. § 7304 (West 2022) (determination of
clear and present danger when there is evidence of an “inability to care for himself, creating
a danger of death or serious harm to himself”); S.C. Code Ann. § 44-23-10 (West 2022)
(“Likelihood of serious harm” means “a very substantial risk of physical impairment or
injury to the person himself as manifested by evidence that the person is gravely disabled
and that reasonable provision for the person’s protection is not available in the
community.”); S.D. Codified Laws § 27A-1-1(7) (West 2022) (finding of dangerousness
(Continued)
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6. The individual presents a danger to persons in his care, including inability to
provide for their basic physical needs: 21
warranted when there has been demonstrated “an inability to provide for some basic human
needs such as food, clothing, shelter, essential medical care, or personal safety”); Tex.
Health & Safety Code Ann. § 574.034 (West 2022) (finding of dangerousness when an
individual is “experiencing substantial mental or physical deterioration of the . . . ability
to function independently, which is exhibited by the . . . inability, except for reasons of
indigence, to provide for the . . . basic needs, including food, clothing, health, or safety”);
Utah Code Ann. § 62A-15-602 (West 2022) (“‘Substantial danger’ means that due to
mental illness, an individual is at serious risk of . . . serious bodily injury because the
individual is incapable of providing the basic necessities of life, including food, clothing,
or shelter . . . .”); Vt. Stat. Ann. tit. 18, § 7101 (West 2022) (finding of dangerousness
warranted when it is established that an individual “has behaved in such a manner as to
indicate that he or she is unable, without supervision and the assistance of others, to satisfy
his or her need for nourishment, personal or medical care, shelter, or self-protection and
safety, so that it is probable that death, substantial physical bodily injury, serious mental
deterioration, or serious physical debilitation or disease will ensue unless adequate
treatment is afforded”); Va. Code Ann. § 37.2-817 (West 2022) (finding of dangerousness
warranted when “there is a substantial likelihood that, as a result of mental illness, the
person will, in the near future, . . . suffer serious harm due to his lack of capacity to protect
himself from harm or to provide for his basic human needs”);Wash. Rev. Code Ann. §
71.05.020 (West 2022) (“Likelihood of serious harm” means an individual is “in danger of
serious physical harm resulting from a failure to provide for his or her essential human
needs of health or safety . . . .”); W. Va. Code Ann. § 27-1-12 (West 2022) (finding of
dangerousness warranted if the “individual is behaving in a manner as to indicate that he
or she is unable, without supervision and the assistance of others, to satisfy his or her need
for nourishment, medical care, shelter or self-protection and safety”); Wis. Stat. Ann. §
51.20 (West 2022) (finding of dangerousness warranted when there is evidence that the
individual is “unable to satisfy basic needs for nourishment, medical care, shelter or safety
without prompt and adequate treatment”); Wyo. Stat. Ann. § 25-10-101 (West 2022)
(finding of dangerousness when there is evidence of an inability to “satisfy basic needs for
nourishment, essential medical care, shelter or safety”).
21
Iowa Code Ann. § 229.1(20) (West 2022) (“‘Seriously mentally impaired’ or
‘serious mental impairment’ describes the condition of a person with mental illness [who]
because of that illness . . . [i]s likely to inflict serious emotional injury on members of the
person’s family or others who lack reasonable opportunity to avoid contact with the person
. . . .”); Ky. Rev. Stat. Ann. § 202A.011(2) (West 2022) (“‘Danger’ or ‘threat of danger to
self, family, or others’ means substantial physical harm or threat of substantial physical
harm upon self, family, or others, including actions which deprive . . . family, or others of
the basic means of survival including provision for reasonable shelter, food, or clothing.”);
(Continued)
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7. The individual has impaired judgment; 22
8. The individual refuses or is unable to consent to voluntary treatment, including
inability to recognize or understand his need for care; 23
Vt. Stat. Ann. tit. 18, § 7101 (West 2022) (finding of dangerousness by showing that “by
his or her actions or inactions he or she has presented a danger to persons in his or her
care”); W. Va. Code Ann. § 27-1-12 (West 2022) (finding of dangerousness when the
“individual, by action or inaction, presents a danger to . . . others in his or her care”).
22
Alaska Stat. Ann. § 47.30.915(9)(B) (West 2022) (“‘[G]ravely disabled’ means a
condition in which a person as a result of mental illness . . . (B) will, if not treated, suffer
or continue to suffer severe and abnormal mental, emotional, or physical distress, and this
distress is associated with significant impairment of judgment, reason, or behavior causing
a substantial deterioration of the person’s previous ability to function independently . . .
.”); Idaho Code Ann. § 66-317(11) (West 2022) (“‘Mentally ill’ means a condition resulting
in a substantial disorder of thought, mood, perception, or orientation that grossly impairs
judgment, behavior, capacity to recognize and adapt to reality and requires care and
treatment at a facility or through outpatient treatment.”); Ind. Code Ann. § 12-7-2-96 (West
2022) (“‘Gravely disabled’, for purposes of [section] 12-26, means a condition in which an
individual, as a result of mental illness, is in danger of coming to harm because . . . [of] a
substantial impairment or an obvious deterioration of that individual’s judgment,
reasoning, or behavior that results in the individual’s inability to function independently.”);
N.D. Cent. Code Ann. § 25-03.1-02 (West 2022) (looking at “[e]vidence of objective facts
to establish the loss of cognitive or volitional control over the individual’s thoughts or
actions” when determining dangerousness); Wash. Rev. Code Ann. § 71.05.020(24) (West
2022) (finding of “grave disability” when the individual “manifests severe deterioration in
routine functioning evidenced by repeated and escalating loss of cognitive or volitional
control over his or her actions”); Wis. Stat. Ann. § 51.20(1) (West 2022) (considering
evidence of “impaired judgment” when determining dangerousness).
23
Ala. Code § 22-52-10.4(a)(4) (West 2022) (“Respondent is unable to make a
rational and informed decision as to whether or not treatment for mental illness would be
desirable.”); Alaska Stat. Ann. § 47.30.755(b) (West 2022) (“If the court finds . . . that the
respondent has been advised of and refused voluntary treatment through the alternative, the
court may order the less restrictive alternative treatment . . . .”); Ariz. Rev. Stat. Ann. § 36-
540 (West 2022) (“If the court finds . . . [the individual] . . . is either unwilling or unable
to accept voluntary treatment, the court shall order the patient to undergo . . . (1) . . .
outpatient treatment, (2) . . . combined inpatient and outpatient treatment, [or] (3) inpatient
treatment in a mental health treatment agency . . . [or] in a hospital . . .”); Ark. Code Ann.
(Continued)
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§ 20-47-207(c)(2)(D)(i) (West 2022) (“The person’s understanding of the need for
treatment is impaired to the point that he or she is unlikely to participate in treatment
voluntarily . . . .”); Cal. Welf. & Inst. Code § 5250(c) (West 2022) (“The person has been
advised of the need for, but has not been willing or able to accept, treatment on a voluntary
basis.”); Conn. Gen. Stat. Ann. § 17a-495(b) (West 2022) (“Gravely Disabled” includes
that “hospital treatment is necessary and available and [the individual] is mentally
incapable of determining whether or not to accept such treatment because his judgment is
impaired by his psychiatric disabilities.”); Del. Code Ann. tit. 16, § 5011(a)(4) (West 2022)
(“The individual has declined voluntarily inpatient treatment, or lacks the capacity to
knowingly and voluntarily consent to inpatient treatment. When evaluating capacity, the
court shall consider an individual’s ability to understand the significant consequences,
benefits, risks, and alternatives that result from the individual’s decision to voluntarily
request or decline inpatient treatment.”); Fla. Stat. Ann. § 394.467(1) (West 2022) (“A
person may be ordered for involuntary inpatient placement for treatment upon a finding . .
. that: (a) He or she has a mental illness and because of his or her mental illness: (1.a.) He
or she has refused voluntary inpatient placement for treatment after sufficient and
conscientious explanation and disclosure of the purpose of inpatient placement for
treatment; or (b.) He or she is unable to determine for himself or herself whether inpatient
placement is necessary . . . .”); Idaho Code Ann. § 66-317(10)(c) (West 2022) (“The
proposed patient lacks insight into his need for treatment and is unable or unwilling to
comply with treatment . . . .”); id. § 66-317(12) (“‘Gravely disabled’ means a person who,
as the result of mental illness, is: . . . [unable to] (d) [r]ecognize that he is experiencing
symptoms of a serious mental illness and lacks insight into his need for treatment and is
unable or unwilling to comply with treatment . . . .”); 405 Ill. Comp. Stat. Ann. 5/1-119(3)
(West 2022) (“A person with mental illness who: (i) refuses treatment or is not adhering
adequately to prescribed treatment; (ii) because of the nature of his or her illness, is unable
to understand his or her need for treatment . . . .”); Iowa Code Ann. § 229.1(20) (West
2022) (“‘Seriously mentally impaired’ or ‘serious mental impairment’ describes the
condition of a person with mental illness and because of that illness lacks sufficient
judgment to make responsible decisions with respect to the person’s hospitalization or
treatment . . . .”); Kan. Stat. Ann. § 59-2946(f) (West 2022) (“(1) ‘Mentally ill person
subject to involuntary commitment for care and treatment’ means a mentally ill person, . .
. who also lacks capacity to make an informed decision concerning treatment . . . . (2)
‘Lacks capacity to make an informed decision concerning treatment’ means that the person,
by reason of the person’s mental disorder, is unable, despite conscientious efforts at
explanation, to understand basically the nature and effects of hospitalization or treatment
or is unable to engage in a rational decision-making process regarding hospitalization or
treatment, as evidenced by an inability to weigh the possible risks and benefits.”); Md.
Code Ann., Health-Gen. § 10-632(e)(2) (West 2022) (“The hearing officer shall . . . [o]rder
the release of the individual . . . unless . . . the individual is unable or unwilling to be
voluntarily admitted to the facility.”); Mich. Comp. Laws Ann. § 330.1401(1) (West 2022)
(Continued)
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9. The individual has a history of mental illness, including prior treatment and
hospitalization; 24
(“‘Person requiring treatment’ means . . . an individual who has mental illness, whose
judgment is so impaired by that mental illness, and whose lack of understanding of the
need for treatment has caused him or her to demonstrate an unwillingness to voluntarily
participate in or adhere to treatment that is necessary.”); N.D. Cent. Code Ann. § 25-03.1-
02 (West 2022) (looking at “the effect of the individual’s mental condition on the
individual’s ability to consent” when determining dangerousness); Ohio Rev. Code Ann.
§ 5122.01 (West 2022) (considering whether “as a result of the person’s mental illness,”
the individual “is unlikely to voluntarily participate in necessary treatment”); S.C. Code
Ann. § 44-17-580 (West 2022) (allowing involuntary commitment if the individual “lacks
sufficient insight or capacity to make responsible decisions with respect to his treatment”);
Tex. Health & Safety Code Ann. § 574.034(a)(2)(C)(iii) (West 2022) (considering whether
the individual is “unable to make a rational and informed decision as to whether or not to
submit to treatment” when determining dangerousness); Utah Code Ann. § 62A-15-
631(16)(a)(iii) (West 2022) (considering whether the individual “lacks the ability to engage
in a rational decision-making process regarding the acceptance of mental treatment as
demonstrated by evidence of inability to weigh the possible risks of accepting or rejecting
treatment” when determining whether involuntary commitment is appropriate).
24
N.D. Cent. Code Ann. § 25-03.1-02 (West 2022) (looking at “patterns in the
individual’s treatment history” when determining if there is a “serious risk of harm”); Okla.
Stat. Ann. tit. 43A, § 1-103 (West 2022) (“The mental health or substance abuse history of
the person may be used as part of the evidence to determine whether the person is a person
requiring treatment . . . .”); Or. Rev. Stat. Ann. § 426.005 (West 2022) (“Person with mental
illness” means a person “[w]ho, within the previous three years, has twice been placed in
a hospital or approved inpatient facility” or “[w]ho is exhibiting symptoms or behavior
substantially similar to those that preceded and led to one or more of the hospitalizations .
. . .”); S.D. Codified Laws § 27A-1-1 (West 2022) (looking at a “person’s treatment
history” when considering if the individual is a danger to self or others); Va. Code Ann. §
37.2-817 (West 2022) (looking at “any past mental health treatment of the person” and
“any health records available” when determining dangerousness); W. Va. Code Ann. § 27-
1-12(b) (West 2022) (“In making the ‘likely to cause serious harm’ determination, . . .
decisionmakers should utilize all available information, including psychosocial, medical,
hospitalization and psychiatric information and including the circumstances of any
previous commitments or convalescent or conditional releases that are relevant to a current
situation . . . .”); Wyo. Stat. Ann. § 25-10-101 (West 2022) (allowing a court to “consider
a person’s mental health history in determining” dangerousness).
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10. The individual has a history of noncompliance with mental health treatments; 25
11. The individual’s need for treatment cannot be adequately addressed by family,
available community programs, or less-restrictive treatment alternatives; 26 and
25
Ark. Code Ann. § 20-47-207(c)(2)(D)(iii) (West 2022) (“‘[A] clear and present
danger to himself or herself’ is established by demonstrating that: . . . (D)(iii) [t]he person’s
noncompliance with treatment has been a factor in the individual’s placement in a
psychiatric hospital, prison, or jail at least two (2) times within the last forty-eight (48)
months or has been a factor in the individual’s committing one (1) or more acts, attempts,
or threats of serious violent behavior within the last forty-eight (48) months.”); 405 Ill.
Comp. Stat. Ann. 5/1-119 (West 2022) (“‘Person subject to involuntary admission on an
inpatient basis’ means: . . . (3) A person with mental illness who: (i) refuses treatment or
is not adhering adequately to prescribed treatment; (ii) because of the nature of his or her
illness, is unable to understand his or her need for treatment; and (iii) if not treated on an
inpatient basis, is reasonably expected, based on his or her behavioral history, to suffer
mental or emotional deterioration . . . .”); Ohio Rev. Code Ann. § 5122.01 (West 2022)
(“Mentally ill person subject to court order” means that the person “would benefit from
treatment as manifested by evidence” that the “person has a history of lack of compliance
with treatment for mental illness . . . .”).
26
Alaska Stat. Ann. § 47.30.755(b) (West 2022) (“If the court finds that there is a
less restrictive alternative available . . . the court may order the less restrictive alternative
treatment . . . .”); Ariz. Rev. Stat. Ann. § 36-540(B) (West 2022) (“The court shall order
the least restrictive treatment available.”); Cal. Welf. & Inst. Code § 5250(d) (West 2022)
(“(1) [A] person is not ‘gravely disabled’ if that person can survive safely without
involuntary detention with the help of responsible family, friends, or others who are both
willing and able to help provide for the person’s basic personal needs for food, clothing, or
shelter. (2) However, unless they specifically indicate in writing their willingness and
ability to help, family, friends, or others shall not be considered willing or able to provide
this help.”); Conn. Gen. Stat. Ann. § 17a-498(c)(3) (West 2022) (“[T]he court shall make
an order for his or her commitment, considering whether or not a less restrictive placement
is available . . . .”); Del. Code Ann. tit. 16, § 5011(a) (West 2022) (“An individual shall be
involuntarily committed for inpatient treatment only if . . . (3) All less restrictive
alternatives have been considered and determined to be clinically inappropriate at the time
of the hearing . . . .”); D.C. Code Ann. § 21-545(b)(2) (West 2022) (“[T]he Court may
order the person’s commitment to the Department or to any other facility, hospital, or
mental health provider that the Court believes is the least restrictive alternative consistent
with the best interests of the person and the public.”); Fla. Stat. Ann. § 394.467(1) (West
2022) (“A person may be ordered for involuntary inpatient placement for treatment upon a
finding . . . that: . . . (b) All available less restrictive treatment alternatives that would offer
an opportunity for improvement of his or her condition have been judged to be
(Continued)
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12. The individual has a history of committing, or has recently committed, dangerous
overt acts or has exhibited grossly disturbed behavior or harmful sexual
conduct. 27
inappropriate.”); Haw. Rev. Stat. Ann. § 334-60.2(3) (West 2022) (A court must find
“[t]hat the person is in need of care or treatment, or both, and there is no suitable alternative
available through existing facilities and programs which would be less restrictive than
hospitalization.”); Idaho Code Ann. § 66-329(11) (West 2022) (“If, upon completion of the
hearing and consideration of the record, and after consideration of reasonable alternatives
. . . , the court finds . . . [commitment is appropriate under this section], the court shall order
the proposed patient committed . . . .”); Me. Rev. Stat. Ann. Tit. 34-B § 3864(6)(A) (West
2022) (“The District Court shall so state in the record . . . clear and convincing evidence
that the person is mentally ill and that the person’s recent actions and behavior demonstrate
that the person’s illness poses a likelihood of serious harm; that adequate community
resources for care and treatment of the person’s mental illness are unavailable; [and] that
inpatient hospitalization is the best available means for treatment of the patient.”); Neb.
Rev. Stat. Ann. § 71-925(1) (West 2022) (“The state has the burden to prove by clear and
convincing evidence that (a) the subject is mentally ill and dangerous and (b) neither
voluntary hospitalization nor other treatment alternatives less restrictive of the subject’s
liberty than inpatient or outpatient treatment ordered by the mental health board are
available or would suffice to prevent the harm.”).
27
Del. Code Ann. tit. 16, § 5001(3), (4) (West 2022) (The determinations of whether
an individual is “dangerous to others” and “dangerous to self” both “take into account a
person’s history, recent behavior and any recent act or threat”); Colo. Rev. Stat. Ann. § 27-
65-102(10)(a), (b) (West 2022) (The “danger to the person’s self or others” inquiry
considers “evidence of recent homicidal or other violent behavior by the person in
question”); Ga. Code Ann. § 37-3-1(9.1) (West 2022) (“‘Inpatient’ means a person who is
mentally ill and: (A)(i) Who presents a substantial risk of imminent harm to that person or
others, as manifested by either recent overt acts or recent expressed threats of violence
which present a probability of physical injury to that person or other persons . . . .”); Miss.
Code Ann. § 41-21-61(f) (West 2022) (“‘Person with mental illness’ means any person
who has a substantial psychiatric disorder . . . which is manifested by instances of grossly
disturbed behavior or faulty perceptions.”); Mo. Ann. Stat. § 632.005(10) (West 2022) (The
determination of “likelihood of serious harm” to another person considers “recent overt
acts, behavior or threats, including verbal threats, which have caused such harm or which
would place a reasonable person in reasonable fear of sustaining such harm. Evidence of
that substantial risk may also include information about patterns of behavior that
historically have resulted in physical harm previously being inflicted by a person upon
another person.”); Utah Code Ann. § 62A-15-602 (West 2022) (“‘Substantial danger’
means . . . an individual is at serious risk of . . . ‘engaging in harmful sexual conduct.’”).
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In order to illustrate how difficult a factoring analysis has become as the science has
advanced, we have assembled the following list of risk predictors from the preceding
discussion (1) concerning continuing scientific, clinical observation and analysis, (2) from
the state sovereigns, and (3) from Ecker and similar sources:
Substance abuse history Minimizing prior violent actions
Target identification History of or mentioning suicide
Weapon use and availability Self-harm activity or threats
Incidents of unsafe behavior The justified fears of others
Refusing or forgetting medication Family member opinions
Refusing or forgetting treatment Friend and fellow committee views
Delusions Inability to protect or care for self
Violent history Same, as to persons in his or her care
Arrest history, especially in youth Impaired judgment
Prior fire setting activity Refusal to access medical care
Animal cruelty Refusal to access psychiatric care
Unusual risk taking Inability to self-assess for treatment
Impulsivity Mental illness type and history
Impaired current mental state Family support
Provocative mate or caregiver Alternative treatment programs
Non-protective mate or caregiver Absence of less-restrictive options
Viewing oneself as a victim Inadequate available alternatives
Lack of compassion or empathy Grossly disturbed behavior
Harmful intent Sexual misconduct
This rather unmanageable inventory illustrates why a rigid resort to factoring has
become impracticable. Instead, the district court’s inquiry must have sufficient play in the
joints. In some cases, one or more of the factors may be worthy of development and
discussion. In other cases, more emphasis might instead be placed on statistical and
actuarial risk predictors developed through expert reports or testimony. In yet other cases,
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the necessity of revocation or continued supervision may be so apparent that the hearing
and the district court’s supporting findings might be justifiably brief. But the irreducible
minimum is a thorough and well-supported explanation by the district court of what
Congress required: a reasoned and logical linkage between the individual’s failure to
comply with the conditions of his discharge on the one hand with the finding on the other
that “his continued release would create a substantial risk of bodily injury to another person
or serious damage to property of another.”
And we stress the discretionary determination of the necessary effort to be devoted
to developing that linkage depends heavily upon counsel surfacing an appropriate
documentary record in advance of the revocation hearing. It is not the district court’s
obligation to discern and develop the factors, statistical risk predictors, or other factual
parameters bearing on the individualized inquiry. Instead, the district court should expect
counsel and the facility professionals to appropriately develop the matter prior to, and then,
if necessary, during the hearing. And if they default, the district court should direct them
to drill down and perform their due diligence. The district court will then be well positioned
to make the discretionary call as to the complexity – or simplicity – of the proceedings
necessary to discharge its statutory obligation.
That process did not occur here. First, counsel utterly failed to furnish the district
court with a documentary record required for this committee. Second, the district court
failed to require more. Our review of the record leaves much room for speculation where
none should exist. What we have in this case is a very brief, repetitive, and gap-filled record
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for a committee with serious, long-term mental challenges who has twice failed conditional
release over his decade-and-a-half hospitalization and treatment.
Mr. Perkins underwent many years of treatment, with both promising and extremely
concerning developments along the way. And Mr. Perkins’ case should certainly have been
more fully developed and intensely scrutinized. According to his July 1, 2013, Annual Risk
Assessment, he showed “no symptoms of psychopathology until 1999,” after suffering that
year a “severe” beating which resulted in the perpetrator’s incarceration. J.A. at 190. After
that traumatic event, he developed “increased mistrust of others and ‘an interest in
politics.’” Id. He believed he was entitled to compensation for his injuries and, when
recompense was denied, “he engaged in behaviors that were indicative of serious
disorganization and severe mental illness.” Id. He regularly carried a firearm, and, of
significant concern, his delusional thoughts centered on a sitting United States
congressman. He contacted the congressman’s family “numerous times in 2000, 2003,
2004, and 2007,” culminating in Mr. Perkins’ arrest that same year for threatening to kill
the congressman. Id.
Once hospitalized under § 4241, his condition “fluctuated,” with hypomania,
disorganized thinking, inappropriate laughter, loud singing and racial slurs. Id. at 193.
Following his hospitalization under § 4246 in 2009 -- in the months preceding his 2010
conditional release -- he yet demonstrated “poor insight into his mental illness.” Id. at 194.
And then he was conditionally released. Unsurprisingly, that release was brief, with his
return to FMC Butner later in 2010. Among other concerning behaviors exhibited during
his return to hospitalization was “an erotomanic fixation” with one of his treating
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physicians, along with a hope that “President Obama and Hillary Clinton would ‘burn in
hell.’” J.A. at 196.
The Risk Panel Assessments in the years following are quite repetitive, but they
give rise to similar concerns repeatedly, culminating in the June 19, 2017, letter to the
district court from the FMC Butner Acting Warden referencing an attached June 1, 2017,
Annual Risk Assessment and stating: “It is the opinion of our mental health staff that Mr.
Perkins continues to suffer from a mental disease or defect such that his release would
create a substantial risk of bodily injury to another person or serious damage to the property
of another.” J.A. at 239.
Just months later, however, on March 6, 2018, the United States Attorney filed a
“CERTIFICATE OF IMPROVED MENTAL CONDITION AND REQUEST FOR
CONDITIONAL RELEASE [(‘Certificate’)].” J.A. at 60. In support of the conditional
release request, the Certificate inexplicably references a November 30, 2017, “annual
forensic risk assessment” – nowhere found in the record on appeal – with no mention of
its starkly contrasting predecessor Annual Risk Assessment mentioned above which was
filed just five months earlier on June 1, 2017. Id. Upon receipt of the March 6, 2018,
Certificate, the district court then conditionally released Mr. Perkins the next day.
Again, Mr. Perkins was apprehended on a warrant issued months later on February
6, 2019, following his (1) refusal to follow Fern Terrace rules, (2) repeatedly failing to
maintain his GPS monitor, resulting in false alerts, (3) refusing to meet with his psychiatrist
and take prescribed medications, and (4) failing to receive permission before leaving the
district. In view of this rather complex thumbnail sketch, and whether the district court
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chose revocation, continued release, or a modification of conditions, we lack the thorough
and considered linkage required by Congress that permits us to review the determination.
Although we do not prescribe a set of requirements, this troubling record suggests
the seriousness of the matter and the inadvisability of simply adopting a facility director’s
recommendation, whether on the matter of conditional release or its revocation:
[T]he whole idea of a hearing on conditional release implies that the opinion
of the director of the treating facility is not necessarily the last word;
otherwise, the statute would have left such decisions entirely in the director’s
hands. Other experts might testify, and the court would be entitled to consider
any relevant lay testimony.
United States v. Jain, 174 F.3d 892, 898 (7th Cir. 1999) (emphasis added).
In those limited cases where a hearing and a very thorough inquiry is warranted
upon revocation or conditional release thereafter, the district court has multiple arrows in
its quiver to assure it is exquisitely well informed and able to adequately explain its
decision. For example, it will have the record developed during the § 4246(b) civil
commitment process and the annual Risk Panel Assessments. Furthermore, § 4246
authorizes the district court to order the comprehensive psychiatric examination and
reporting contemplated by 18 U.S.C. § 4247(b) and (c). Additionally, the district court and
the parties will also possess the examination and reporting leading to the § 4246(e)
conditional discharge determination.
Following the receipt of this information, perhaps supplemented by any helpful
actuarial risk assessment information supplied by the expert(s), the district court may then
conduct the revocation hearing and explain in the record, inter alia, why it deems the
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subject’s “continued release would” or would not “create a substantial risk of bodily injury
to another person or serious damage to property of another.” 18 U.S.C. § 4246(f).
For example, if a conditionally released individual is homeless, suffering from
schizophrenia, exhibiting paranoia, refusing to take his psychotropic medication, and
avoiding further psychiatric evaluation, the dots are readily connected with little in the way
of explanation. Alternatively, if the individual is continuing his medication and outpatient
psychiatric care but has missed a single appointment with his probation officer and is
between jobs, more depth would be required for a district court’s findings that the defaulted
conditions give rise to dangerousness and hence revocation.
Furthermore, the need for a lengthy hearing and expert testimony will doubtless
arise only infrequently. For the ten-year period from August 2012 to August 2022, only
353 conditional discharge cases were closed nationwide. Of those -- again on a nationwide
basis -- only 97 conditional discharges were revoked. By comparison, there were 450,459
supervised release cases closed during the same period, with 149,304 resulting in at least
one revocation hearing. Further, there is no indication that our Circuit has a
disproportionate share of conditional discharge or revocation cases, despite FMC Butner
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falling within our boundaries. 28 For the same ten-year period noted above, there were only
43 conditional discharge cases closed in our Circuit, with only 20 resulting in revocation. 29
Irrespective of the work required, however, much hangs in the balance when the
§ 4246(f) dangerousness determination pends. As noted, in the event a high-risk individual
is released amiss, he or she may wreak havoc until apprehended; alternatively, if a revoked
individual is restored and eligible for conditional discharge anew, her continued
incarceration, without a sound, current, and scientific basis, is both an unnecessary and
intolerable restraint of personal liberty, not to mention an unwarranted burden on the fisc.
VI.
Under the standards we have established today, a district court may now revoke
conditional discharge upon finding by a preponderance of the evidence that (1) the
individual failed to comply with his treatment regimen, including all conditions reasonably
28
FMC Butner “serves as a major medical and psychiatric referral center for male
inmates.” Dep’t of Justice, Fed. Bureau of Prisons, Legal Resource Guide to the Federal
Bureau of Prisons 28 (2019). There are three other “major . . . psychiatric referral center[s]”
in the United States, namely, FMC Carswell (Fort Worth, Texas), FMC Rochester
(Rochester, Minnesota), and, as noted, USMCFP Springfield (Springfield, Missouri). Id.
at 28–29.
29
The data points are freely available to federal probation offices nationwide.
Unfortunately, the statistics are not readily available otherwise. One commentator has
observed that “[a]lthough civil commitment is practiced across the United States, basic
statistics about these policies, such as the numbers of involuntary psychiatric
hospitalizations each year, remain unknown or inaccessible to much of the public.”
Nathaniel P. Morris, M.D., Detention Without Data: Public Tracking of Civil Commitment,
71 Psychiatric Servs. 741, 741 (2020) (noting “there is no federal database that tracks the
number of patients who are committed against their will to psychiatric units each year. . . .
Given the loss of liberty, the personal distress, and the stigma involved, this lack of data is
astounding.” (cleaned up)).
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related thereto, and that, in light of that failure, (2) his continued release would create a
substantial risk of bodily injury to another. We note that “district courts generally are
accorded great latitude when determining whether a mentally ill defendant is ready to be
released and under what conditions.” Jain, 174 F.3d at 898; United States v. Weed, 389
F.3d 1060, 1071–72 (10th Cir. 2004) (“Our role on clear error review is not to re-weigh
the evidence; rather, our review of the district court’s finding is significantly deferential.”
(cleaned up)). But the district court’s finding(s) in support of revocation, or permitting
continued conditional release (with or without modified conditions), must, as we have
noted, contain a reasoned and logical linkage of the statutory questions sufficient for us to
perform our obligations on review.
The record is unclear whether the district court’s findings were made by a
preponderance of the evidence. It also appears from the record that the district court
collapsed both inquiries of § 4246(f) into a single question, focusing only on whether Mr.
Perkins violated conditions of his release and not explaining why “in light of” those
violations his continued release created a substantial risk to other persons or property.
Additionally, the record would benefit from further development respecting the violations
alleged and the available, recent records from the facility. For example, the government
during argument before the district court noted that (1) Mr. Perkins believes that his civil
commitment is illegal because he has never engaged in threatening behavior, (2) he would
potentially be homeless if released, (3) he failed to meet with his psychiatrist for a period
of months, (4) he is verbally abusive to staff at his facility, and (5) he will not maintain his
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GPS locator. If that evidence is admitted and credited by the district court, it would give
rise to serious risk assessment concerns.
On the other hand, we note the government stated as well during argument before
the district court that “he cannot miss doses. His condition is such that missing a dose can
have serious impacts. . . . And so missing two doses is going to have a detrimental effect.”
J.A. at 133. The medication prescribed, how often it was missed, and the effect of the
missed medications is not a matter for argument. Instead, the government should take note
of its evidentiary burden, develop evidence on the point, and provide the district court a
sound basis for making reasoned findings on the matter of dangerousness for that
particular, alleged violation. Further, at a minimum, the recent, noncontradictory input
from the Risk Panel would be exceptionally helpful.
VII.
Respecting the proof standard, our learned, concurring colleague offers a much
briefer discussion. The fulcrum of his analysis is the “internal logic of” § 4246. See
Lockhart v. United States, 577 U.S. 347, 352 (2016). The thoughtful approach he offers
works quite well for purposes of both §§ 4246(d) and 4246(e). But that same internal logic
inevitably collides with § 4246(f). It simultaneously demonstrates the necessity of the
considerable effort we devoted to surfacing and resolving the issues presented.
As noted, Congress specified textually in § 4246 a high proof standard in subsection
(d), a lower proof standard in subsection (e), and no proof standard whatsoever in
subsection (f). We must thus reckon with at least two questions as we go about the task of
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interpreting § 4246(f). First, did Congress -- by its silence -- leave a crevice within which
the Judiciary might insert the preponderance standard for subsection (f) determinations?
Second, if it did not do so, did it leave us to guess about the applicable proof standard? The
concurring opinion answers the first question in the affirmative and necessarily sidesteps
the second. In contrast, our research conclusively answers both questions in the negative.
We eventually reach the same result as our good colleague, but by radically different
approaches. Our parting of analytical ways might ordinarily be the end of the matter. But
it is not in this instance, at least if we wish to arrive at the right result in the right way --
and simultaneously avoid a criticism that we have not given due regard to the Article I
legislature.
Respecting the first question, the concurring opinion is on very shaky interpretive
ground suggesting Congress in 1984 silently permitted -- or implicitly chose -- the
preponderance standard. As noted, the preponderance standard urged by our colleague was
unceremoniously jettisoned by Senate and House Conferees just two days preceding
congressional passage and the President’s signature. As noted supra, the striking of that
proof standard during Conference is a drafting event of significant moment; it also restrains
us from substantive reinsertion by nominal interpretation:
“Few principles of statutory construction are more compelling than the
proposition that Congress does not intend sub silentio to enact statutory
language that it has earlier discarded in favor of other language.” INS v.
Cardoza-Fonseca, 480 U.S. 421, 442–43 (1987) (quoting Nachman Corp. v.
Pension Benefit Guar. Corp., 446 U.S. 359, 392–93 (1980) (Stewart, J.,
dissenting)); see also Muniz v. Hoffman, 422 U.S. 454, 468 (1975)
(explaining that statutory text “may not be read isolated from its legislative
history and the revision process from which it emerged, all of which place
definite limitations on the latitude we have in construing it.”).
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Garey v. James S. Farrin, P.C., 35 F.4th 917, 927 (4th Cir. 2022); see also Gulf Oil Corp.
v. Copp Paving Co., 419 U.S. 186, 200 (1974) (“The Conference Committee . . . deleted
this ‘effects on commerce’ provision, leaving only the ‘in commerce’ language of s 2(a). .
. . [I]ts action strongly militates against a judgment that Congress intended a result that it
expressly declined to enact.”) (cited in Campbell v. McCarthy, 952 F.3d 193, 205 n.10 (4th
Cir. 2020) (King, J.)); Davis v. Lukhard, 788 F.2d 973, 981 (4th Cir. 1986) (“Inasmuch as
the conference report represents the final statement of terms agreed upon by both houses
of Congress, next to the statute itself, it is the most persuasive evidence of Congressional
intent behind the enactment of a statute.”) (cleaned up); Austin v. Owens-Brockway Glass
Container, Inc., 78 F.3d 875, 881 (4th Cir. 1996) (“In this circuit, conference reports are
the most persuasive evidence of legislative intent, after the statute itself.”).
Respecting the second question, Congress did not leave us guessing about the
applicable proof standard. It is for this reason, if no other, that our lengthy discussion
leading up to and including Section V.A.3 is so essential in our view. As there discussed,
Congress (1) explicitly analogized conditional release to the decades-old sentence of
probation, (2) left the revocation proof standards for both unstated in enacting the 1984
CCCA, and (3) thus left undisturbed the then well-settled, existing “reasonably satisfied”
standard as to probation revocation, with the same standard thereafter to govern revocation
of conditional release. If we had failed to illuminate the fact that the “reasonably satisfied”
probation revocation standard originated with the Article III Judiciary long before
enactment of the 1984 CCCA -- and thus then gradually and permissibly morphed
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judicially once again into the preponderance probation revocation standard across the
circuits in the years following -- we might erroneously be perceived as substituting our
judgment for that of the Article I legislature in 1984 -- and thereby imposing a newly
minted proof standard Congress rejected during Conference. 30 That is a criticism we would
just as soon avoid.
We likewise differ with our concurring colleague’s objection to our use of
information outside the record. While he does not cite the sources giving rise to that
challenge, we detect no difficulty. None of the authorities we reference are beyond our
permissible reach. Fed. R. Evid. 201 cmt. (“Legislative facts, on the other hand, are those
which have relevance to legal reasoning and the lawmaking process, whether in the
30
The concurring opinion cites “the only circuit court of appeals to address this
issue in a published decision. Sealed Appellee v. Sealed Appellant, 665 F.3d 620 (5th Cir.
2011).” But Sealed Appellee notes just the opposite. The panel observed the parties were
not in controversy on the proof standard. Id. at 623 (“[W]e hold that the fair preponderance
of evidence standard, not challenged as the standard appropriate to decide whether the
violative conduct occurred, also applies to the twin finding of a substantial risk of harm.”)
(emphasis added). The concise three-page opinion devotes but a few sentences to the
statutory text. It is thus of little assistance. It does, however, illustrate, like other decisions
we noted supra, that no court has yet been willing to undertake the difficult statutory
interpretation question here presented.
Neither are we persuaded that Herman & MacLean v. Huddleston, 459 U.S. 375,
390 (1983), and similar cases materially aid the inquiry. While we are, as the concurring
opinion cogently observes, dealing with a civil commitment matter, there is a vast gulf
between that matter and ordinary civil litigation. The securities fraud and gender
discrimination controversies cited in the concurring opinion are matters of significance.
But they are not meaningful comparators to cases such as this one, which began with
serious threats against a congressman and his family by an individual with serious mental
challenges, with that individual hanging in the balance between indefinite confinement and
conditional freedom. We thus disagree with the notion this atypical case is a neat match for
the usual civil procedural rules and standards otherwise applicable.
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formulation of a legal principle or ruling by a judge or court or in the enactment of a
legislative body.”); see Brenda C. See, Written in Stone? The Record on Appeal and the
Decision-Making Process, 40 Gonz. L. Rev. 157, 191 (2005) (“‘Legislative’ facts concern
matters which relate to what is known as the ‘legislative’ function of the court, where the
court is in essence ‘making law’ either by filling a gap in the common law by formulating
a rule, construing a statute, or framing a constitutional rule.”) (quoting Edward J.
Imwinkelried, Expert Testimony By Ethicists: What Should Be the Norm?, 76 Temp. L.
Rev. 91, 114 (2003)); Kenneth Culp Davis, An Approach to the Problems of Evidence in
the Administrative Process, 55 Harv. L. Rev. 364, 406 (1942); See, supra, at 196 & n.346
(quoting a separate study of Supreme Court decisional law and observing “from 1991
forward there has been a ‘substantial and continuing increase in the [Supreme] Court’s
citation of nonlegal sources’ and further noting “non-legal citations consisted of secondary
materials other than cases, constitutional provisions, legal treatises, law reviews,
governmental documents, and standard compilations of legislative and constitutional
history. Thus, the set of non-legal citations consists largely of citations to history, political
science, economics, and other non-legal academic journals, to newspapers and popular
periodicals, to dictionaries and encyclopedias, to books of history, politics, and the like,
and occasionally to poetry, plays, and literature.”) (quoting Frederick Schauer & Virginia
J. Wise, Legal Positivism as Legal Information, 82 Cornell L. Rev. 1080, 1110 n.92
(1997)).
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Our very limited resort to history and settled psychiatric science pales by
comparison to the outside research performed -- and exotic sources consulted -- at the
highest level of the Judiciary. Allison Orr Larsen, Confronting Supreme Court Fact
Finding, 98 Va. L. Rev. 1255, 1261–62 (2012) (“Justice Breyer is not apologetic for his
independent research and he is not alone. Justice Alito, who concurred in the result of
[Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011),] but disagreed with
affording First Amendment protection to these video games, peppered his opinion with
citations to websites (like slashgear.com and popularmechanics.com), touting the
‘astounding’ violence, ‘antisocial theme,’ and ‘interactive nature’ of these video games.
His opinion, in fact, prompted Justice Scalia to criticize Alito for his ‘considerable
independent research.’ And not to be outdone, Justice Thomas’s dissent in the same case
cites fifty-nine sources to establish the fact that the Founding generation believed parents
had complete authority over their children’s development. Fifty-seven of those sources
cannot be found in the briefs -- party briefs or amicus briefs -- and were thus the product
of in-house research.”); id. at 1276–77 (“Several of the sources Justice Scalia uses in
District of Columbia v. Heller to set forth the history of the language of the Second
Amendment were drawn from outside of the party briefs or the hundreds of amicus briefs
filed in that case. . . . Once again the Justices who rely extensively on such in-house
research cannot be identified by the politics of the President who appointed them.
Examples of such extensive in-house fact finding include: Justice Kennedy’s opinion for
the Court in Graham v. Florida, Justice Alito’s majority opinion in McDonald v. City of
Chicago, Justice Ginsburg’s dissent in Gonzales v. Carhart, Justice Thomas’s concurrence
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in Safford Unified School District No. 1 v. Redding, Justice Scalia’s concurrence in Citizens
United v. FEC, and Justice Breyer’s dissents in Free Enterprise Fund v. Public Company
Accounting Oversight Board and Parents Involved in Community Schools v. Seattle School
District No. 1. In-house fact finding is thus not a rarity in any sense of the word. It happens
in many cases, can be found in opinions from many Justices, and can account for a
substantial percentage of the factual citations in any one opinion.”).
These differences aside, we are grateful to our colleague for joining the result
reached.
VIII.
Based upon the foregoing discussion, we vacate the district court’s order and
remand for further proceedings consistent with the foregoing discussion.
VACATED AND REMANDED
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AGEE, Circuit Judge, concurring in the judgment:
I agree with the majority that 18 U.S.C. § 4246(f) requires the determination to
revoke conditional discharge to be based upon a preponderance of the evidence and that
the district court’s discussion fell short of making the requisite findings to revoke Perkins’
conditional discharge. For that reason, I concur in the decision to vacate the district court’s
order and remand the case for further proceedings. I write separately, however, because the
majority opines at length on matters unnecessary to resolve the case before us and which
are not contained in the record.
I.
The first issue before the Court is whether § 4246(f)’s revocation-of-conditional-
discharge determination must be based on a preponderance-of-the-evidence or a clear-and-
convincing-evidence standard. Like the majority, I conclude that the preponderance-of-the-
evidence standard applies. I reach this conclusion because neither the Constitution nor the
statute requires a heightened degree of proof and the default degree of proof in civil cases—
a preponderance—is appropriate. In doing so, I agree with the only circuit court of appeals
to address this issue in a published decision. Sealed Appellee v. Sealed Appellant, 665 F.3d
620 (5th Cir. 2011). 1 For these reasons, elaborated on below, I agree that a district court
1
Perkins points to a later Fifth Circuit decision to contend that it “suggest[ed]” the
clear-and-convincing-evidence standard should apply. That case, United States v. Mitchell,
709 F.3d 436 (5th Cir. 2013), does not apply. Looking at a different, albeit identical,
statutory provision regarding revocation of discharge for persons found not guilty by
reason of insanity (§ 18 U.S.C. § 4243(g)), Mitchell did not resolve the issue of the degree
(Continued)
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must make the requisite findings to revoke conditional discharge under subsection (f) by a
preponderance of the evidence.
Turning first to the statute: section 4246 sets out the procedure for civilly
committing an individual who, along with other criteria, is “presently suffering from a
mental disease or defect as a result of which his release would create a substantial risk of
bodily injury to another person or serious damage to property of another.” § 4246(a). The
first four subsections of the statute discuss the procedures and criteria for an initial
commitment. § 4246(a)–(d). Subsection (d) specifies that the district court’s factual
findings must be made using the clear-and-convincing-evidence standard: the district court
must “find[] by clear and convincing evidence that the person is presently suffering from
a mental disease or defect as a result of which his release would create a substantial risk of
bodily injury to another person or serious damage to property of another.” Subsection (e)
specifies the procedures and criteria for discharge and conditional discharge from civil
commitment, requiring that the court make its findings “by a preponderance of the
evidence.” Subsection (f) addresses when a district court may revoke conditional discharge,
of proof required, determining that even under the higher standard, the record supported
the district court’s findings. Id. at 443.
The majority takes issue with my recognition that Sealed Appellee also rejected the
clear-and-convincing-evidence standard in favor of a preponderance-of-the-evidence one.
Ante at 96 n.30. That decision did “hold” that the district court appropriately used the
preponderance-of-the-evidence standard when assessing whether to revoke conditional
discharge under § 4246(f). 665 F.3d at 622–23. Although the parties did not challenge the
standard specifically applicable to the part of that inquiry relating to whether a violation
occurred, that does not alter the court’s statutory analysis. See id. at 623. More to the point,
no circuit court has held that a higher standard applies to § 4246(f).
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but unlike subsections (d) and (e), it does not expressly state the evidentiary standard the
court must use to make that determination. 2
Given subsection (f)’s silence on the specific issue of the degree of proof required,
it is reasonable to assume that Congress’s silence is precisely that—silence. See Zuber v.
Allen, 396 U.S. 168, 185 (1969) (“Legislative silence is a poor beacon to follow in
[statutory interpretation].”). And when, as in subsection (f), Congress is silent on a
particular matter, the Court “must presume that Congress is aware of the legal context in
which it is legislating.” Battle v. Ledford, 912 F.3d 708, 717 (4th Cir. 2019) (internal
citation and quotation marks omitted). Here, that context includes the understanding that
when “Congress has not prescribed the appropriate standard of proof and the Constitution
does not dictate a particular standard, [the Court] must prescribe one.” Herman & MacLean
v. Huddleston, 459 U.S. 375, 389 (1983). 3
In determining the appropriate degree of proof the Court should prescribe for
subsection (f), we are not operating on a blank slate. That’s so because the Supreme Court
and this Court have long recognized that the presumptive degree of proof required in
2
Subsections (g) and (h) discuss releasing certain individuals to one of the States or
the District of Columbia, and have no bearing on the issues in this case.
3
As my recitation of and reliance on these general principles should reflect, the
majority opinion mischaracterizes my approach. I do not suggest that Congress has adopted
a preponderance standard sub silentio. Ante at 94–95. To the contrary, I recognize that the
text of § 4246(f) is silent on which standard of proof applies and that its silence requires
this Court to supply the proper standard by applying standard tools available to us to fill
that void. As the majority recognizes, our disagreement lies in which rules and principles
best guide us in carrying out that task rather than the conclusion they direct us to reach.
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federal civil cases is a preponderance of the evidence, and that presumption is overcome
only when the Constitution or statutory language requires a heightened standard. Id. at
389–90; cf. Price Waterhouse v. Hopkins, 490 U.S. 228, 253 (1989) (“[O]ne of the
[conventional rules of civil litigation] is that parties to civil litigation need only prove their
case by a preponderance of the evidence. Exceptions to this standard are uncommon, and
in fact are ordinarily recognized only when the government seeks to take unusual coercive
action . . . against an individual.”), superseded by statute on other grounds, Civil Rights
Act of 1990, 42 U.S.C. § 2000e-2(m); Desert Palace, Inc. v. Costa, 539 U.S. 90, 98–99
(2003) (citing Price Waterhouse and observing that Congress’ “failure to” require a
heightened showing “is significant, for [it] has been unequivocal when imposing
heightened proof requirements in other circumstances, including in other provisions of”
the title under review). Because subsection (f) does not explicitly require a heightened
degree of proof, the preponderance-of-the-evidence standard applies absent a requirement
of the Constitution or an applicable statute.
The Constitution does not require a heightened standard for a revocation-of-
conditional-discharge proceeding. The Supreme Court has held that the Constitution
requires an initial civil commitment determination to be made using a clear-and-
convincing-evidence standard, but it has never indicated that a heightened standard remains
necessary in subsequent decisions relating to the same civil-commitment decision of the
same individual. In Addington v. Texas, 441 U.S. 418 (1979), the Supreme Court reiterated
that “civil commitment for any purpose constitutes a significant deprivation of liberty that
requires due process protection,” id. at 426, and required greater than a preponderance of
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the evidence and yet less than the criminal standard of proof beyond a reasonable doubt,
id. at 426–33. The Court cited numerous reasons why the Constitutional demands of due
process required the initial commitment decision to be made by a heightened degree of
proof, including the “social consequences to the individual” (“stigma”), id. at 425–26; and
the “gravity” of the state’s decision “to justify confinement,” id. at 427. These
constitutional prerogatives supported a clear-and-convincing-evidence standard to civilly
commit someone as part of the initial commitment decision under § 4246(a)–(d).
Subsequent decisions related to discharge that flow as a consequence of that original
commitment do not similarly require a heightened degree of proof. This is in part because
the original due-process concerns that led the Supreme Court to require a heightened degree
of proof have already been largely satisfied in the initial proceeding. The issue in
subsequent post-commitment proceedings is the separate concern as to when that
commitment should change form. That’s an inherently different inquiry. 4
In an analogous example from criminal law, consider an initial criminal sentence of
imprisonment and the later revocation of supervised release. While an individual can be
sentenced to imprisonment only after being found guilty of a criminal offense beyond a
reasonable doubt, that same individual can be reimprisoned based on a revocation of
supervised release based on violations—criminal or not—that need only be found by a
4
This conclusion does not implicate a subsequent civil commitment following
unconditional discharge from an earlier commitment. In that event, the government must
start a new commitment proceeding and must satisfy its burden anew. That’s a different
inquiry than presented here, where conditional discharge and revocation of that conditional
discharge both occur under the parameters of the initial civil commitment.
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preponderance of the evidence. E.g., Johnson v. United States, 529 U.S. 694, 700 (2000)
(“Although such violations often lead to reimprisonment, the violative conduct need not be
criminal and need only be found by a judge under a preponderance of the evidence
standard, not by a jury beyond a reasonable doubt.”); United States v. Armstrong, 187 F.3d
392, 394 (4th Cir. 1999) (“[I]n [a revocation of supervised release] proceeding[], findings
of fact are made under a preponderance-of-the-evidence, rather than reasonable doubt,
standard, the traditional rules of evidence are inapplicable, and the full panoply of
constitutional protections afforded a criminal defendant is not available.” (cleaned up));
see also United States v. Cunningham, 607 F.3d 1264, 1268 (11th Cir. 2010) (per curiam)
(collecting cases from multiple circuit courts recognizing that different due process
concerns exist in the context of the revocation process than the initial sentencing decision
because the former flows directly from the latter); United States v. McNeil, 415 F.3d 273,
277 (2d Cir. 2005) (“[A] violation of supervised release is not a separate basis for criminal
punishment that requires a jury verdict and all that that entails. Imposition of supervised
release is authorized by the original conviction, and so too are the consequences of its
violation. Revocation required only a finding by a judge under a preponderance of the
evidence standard.” (internal citations and quotation marks omitted)). 5
5
In United States v. Haymond, 139 S. Ct. 2369 (2019), the Supreme Court
articulated a caveat to this general understanding when a statute imposed a new, mandatory
term of imprisonment distinct from the defendant’s original sentence based on the conduct
that caused the revocation of supervised release. But these nuances are not relevant for
present purposes.
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If that principle applies between an initial decision to imprison someone under the
highest degree of proof—reasonable doubt—and a later decision to revoke supervised
release, it applies all the more so as between an initial decision to civilly commit someone
and a later decision to revoke conditional discharge. In the context of either the criminal or
civil revocation, the court is not imposing anything new, but rather reverting to the status
that had already been authorized in compliance with constitutional due process. The
subsequent decision to “revoke” the prior conditional relief does not implicate the
Constitution in the same manner as the original decision, but is, instead, “anull[ing] by
recalling or taking back.” Webster’s Third New International Dictionary 1944 (3d ed.
1961); see Johnson v. United States, 529 U.S. at 706 (discussing the definition of
“revocation” in the context of supervised release proceedings). Accordingly, the
Constitution does not require a heightened standard to be used in a revocation-of-
conditional-discharge proceeding under subsection (f).
While Congress could impose a heightened degree of proof, it did not do so here,
and subsection (f)’s function within § 4246 reinforces the conclusion that a preponderance-
of-the-evidence standard applies to a district court’s determination to revoke conditional
discharge. As already noted, subsection (f) is silent on this issue, so Congress has not
explicitly imposed a heightened statutory degree of proof. Nor does any other provision of
§ 4246 imply that subsection (d)’s heightened standard carries over to subsection (f). To
the contrary, requiring clear and convincing evidence to revoke discharge would
“undermine[]” “the internally coherent structure of Section 4246.” Sealed Appellee, 665
F.3d at 622; see also Lockhart v. United States, 577 U.S. 347, 352 (2016) (pointing to the
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“internal logic of” the statutory language as a beginning point for understanding a
provision’s context). It would do so in at least two ways—first, by impeding proper
operation of subsection (e)’s preponderance-of-the-evidence standard and, second, by
creating an incentive for individuals on conditional discharge to violate the requirements
of their release because re-commitment would require a heightened standard of review. See
Sealed Appellee, 665 F.3d at 622–23.
The connection between authorizing discharge or conditional discharge under
subsection (e) and revoking conditional discharge under (f) makes it appropriate to carry
over subsection (e)’s express preponderance-of-evidence standard to subsection (f). As
described above, subsection (e) states that a determination to discharge or conditionally
discharge someone must be made based on findings supported by a preponderance of the
evidence. Conditional discharge is appropriate when a preponderance of the evidence
shows that an individual’s “conditional release under a prescribed regimen of medical,
psychiatric, or psychological care or treatment would no longer create a substantial risk of
bodily injury to another person or serious damage to property of another.” § 4246(e)(2). In
that event, the district court has authority to order certain conditions of release, including
a “prescribed regimen of medical, psychiatric, or psychological care or treatment.”
§ 4246(e)(2)(A) & (B). Subsection (e) further provides that “at any time,” the district court
may hold a hearing “employing the same criteria” at which it may “modify or eliminate
the regimen of medical, psychiatric, or psychological care or treatment.” § 4246(e).
But individuals conditionally discharged under subsection (e) are subject to
subsection (f)’s provisions permitting revocation of their conditional discharge.
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Specifically, subsection (f) authorizes a district court to revoke discharge upon
determining, after a hearing, that the conditionally discharged individual has violated a
condition of his discharge and that as a consequence his “continued release would create a
substantial risk of bodily injury to another person or serious damage to property of
another.” § 4246(f). Because subsection (f) permits a court to undo what subsection (e)
authorizes, the two determinations are tethered in a way that makes it germane and
appropriate to use the same standard of proof. To put a finer point on it, as between these
two subsections, the original decision to permit conditional discharge requires certain
findings by a preponderance of the evidence, one of which is that “release under a
prescribed regimen . . . would no longer create” the risk that authorized commitment in the
first instance. § 4246(e)(2). But upon proof that he has violated the terms of the prescribed
regimen, the individual has demonstrated that he cannot abide by the only criteria under
which the district court had found it appropriate to reconsider the initial commitment
decision. So, in a revocation proceeding, subsection (f) tasks the district court first with
finding that a violation of the regimen occurred and then reconsidering whether that
violation means that commitment, conditional discharge, or discharge is appropriate going
forward. In effect, the provision puts the district court back in the position it was in when
originally considering whether discharge was initially appropriate under subsection (e).
The same standard logically applies to both subsections.
Further, the final sentence of subsection (e) provides that the “court may at any time,
after a hearing employing the same criteria, modify or eliminate the regimen of medical,
psychiatric, or psychological care or treatment.” That the conditions of discharge can be
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modified or eliminated based on a preponderance-of-the-evidence standard provides
further support for the conclusion that the conditional discharge itself should be revoked
under subsection (f) using that standard. See Sealed Appellee, 665 F.3d at 623 (“This
subsection (e) evidentiary showing necessary to modify or eliminate conditional release
should not be circumvented by persons who violate terms of release yet then oppose
revocation and commitment on the ground that the district court must re-find clear and
convincing proof of a substantial risk of harm.”).
This interpretation makes practical sense not only of these two adjoining and
interrelated subsections, but also of § 4246 as a whole. Requiring clear and convincing
evidence for subsection (f) could create an incentive for individuals who are conditionally
discharged to violate their conditions of release. An individual already found to be subject
to commitment under subsection (d) could obtain conditional discharge under subsection
(e)’s preponderance-of-the-evidence showing, violate the terms of that discharge, and then
force litigation over the consequences of his violation of the terms of the discharge under
subsection (d)’s heightened standard of proof. See Sealed Appellee, 665 F.3d at 622 (“A
contumacious person could violate release conditions yet continually relitigate against
commitment under subsection (d)’s clear and convincing proof standard.”). There is no
indication that Congress mandated such a result, particularly sub silentio.
For these reasons, I agree with the majority that a preponderance-of-the-evidence
standard is appropriate for revocation of conditional discharge under subsection (f). There
may be additional support for this standard in historical underpinnings and analogous
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statutory provisions, as the majority relies on, but I do not believe they are necessary to
reach this conclusion and stray in some instance outside the record.
II.
The second issue before the Court is whether the district court made adequate factual
findings under subsection (f) to support its decision to revoke Perkins’ conditional
discharge. As noted, subsection (f) requires the district court to make two findings—(1)
the conditionally discharged individual “fail[ed] to comply with the prescribed regimen of
medical, psychiatric, or psychological care or treatment,” and (2) that, in light of those
violations, “his continued release would create a substantial risk of bodily injury to another
person or serious damage to property of another.” As the majority opinion recites at greater
length, although the district court twice found that Perkins violated several conditions of
his discharge, its explanation was limited to noting which violations it found to have
occurred. Ante at 5–10, 57–58. Moreover, this Court specifically remanded the case at the
Government’s request so that the district court could hold a further hearing on subsection
(f)’s additional requirement that Perkins’ “continued conditional release would create a
substantial risk of bodily injury to another person or serious damage to property of
another.” However, on this point, the court failed to provide any relevant findings at either
hearing. Instead, it expressed “hope [that] the Fourth Circuit will amplify what it meant by
having to find [this] additional requirement[],” J.A. 139, and simply concluded, “the
violations heretofore set out depicting the conduct of the defendant during his release
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would create a substantial risk of bodily injury to another person or serious damage to the
property of another,” J.A. 141.
I agree with the majority opinion that this record provides an insufficient basis to
affirm the district court’s order. At the outset, it’s not clear from the record that the district
court used a preponderance-of-the-evidence standard for both required findings. More
problematically, as the majority opinion observes, “the district court collapsed both
inquiries of § 4246(f) into a single question, focusing only on whether Mr. Perkins violated
conditions of his release and not explaining why ‘in light of’ those violations his continued
release created a substantial risk to other persons or property.” Ante at 92.
Congress enacted an intentionally broad standard that permits the district court to
consider on remand whatever evidence it deems relevant to making its determination. As
the text of subsection (f) states, to revoke conditional discharge, district courts must find
both that violations of conditional discharge occurred and that those violations mean that
the individual’s continued conditional discharge would “create a substantial risk of bodily
injury to another person or serious damage to the property of another.” In most cases, this
will entail a relatively straightforward comparison of the original grounds for civil
commitment, the reasons why discharge was conditioned on the prescribed regimen, and
how the violation of those conditions leads back to the risks associated with non-compliant
discharge. Nothing in the provision suggests that the inquiry requires a detailed evidentiary
hearing of the sort contemplated for initial commitment under subsections (a) to (d).
The majority opinion’s comprehensive discussion of factors that may be relevant in
a particular proceeding delves beyond the scope of subsection (f) and seems more
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appropriately covered in the context of what might be required in an initial commitment
proceeding. I do not join its discussion on this point because it offers a detailed framework
that Congress did not prescribe and ventures well beyond the record. And, by articulating
such an extensive list for the relatively straightforward and broad concept articulated in
subsection (f), the majority opinion may have inadvertently created a procedural quagmire
for district courts and counsel alike in conducting revocation proceedings.
Counsel and district courts know the records in each case and can tailor the
arguments and evidence to fit the circumstances. In like manner, district courts can make
the requisite findings to support revocation of conditional discharge. Where they do not,
that failure can be addressed on a case-by-case basis rather than by articulating a free-
standing and expansive list where parts of it may well be irrelevant and misleading in a
particular case.
In any event, for present purposes, the district court failed to make any findings
connecting Perkins’ failure to comply with the conditions of his discharge to a
determination that “his continued release would create a substantial risk of bodily injury to
another person or serious damage to property of another.” That is sufficient, in and of itself,
to require remand.
****
For these reasons, I concur in the judgment of the majority opinion, which vacates
the district court’s order revoking Perkins’ conditional discharge and remands for further
proceedings under a preponderance-of-the-evidence standard.
112