JOHN GEORGE SAHHAR, PETITIONER V. UNITED STATES OF AMERICA No. 90-6849 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. B) is reported at 917 F.2d 1197. The opinion of the district court (Pet. App. A) is unreported. JURISDICTION The judgment of the court of appeals was entered on October 29, 1990. The petition for a writ of certiorari was filed on January 22, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner was denied equal protection by his commitment under 18 U.S.C. 4246, which provides for involuntary commitment of dangerous mentally ill persons charged with federal crimes who have been found incompetent to stand trial. 2. Whether petitioner was denied due process or equal protection because 18 U.S.C. 4246 does not provide for a jury trial to determine eligibility for commitment. 3. Whether the Due Process Clause requires proof that petitioner had recently committed a dangerous act before he could be committed under 18 U.S.C. 4246. STATEMENT An indictment returned in the United States District Court for the Central District of California charged petitioner with making a threat against the President, in violation of 18 U.S.C. 871. After finding petitioner incompetent to stand trial, the district court determined that petitioner was suffering from a mental disease or defect and that his release would present a substantial risk of harm to persons and property. The court committed petitioner to the custody of the Attorney General for hospitalization and treatment pursuant to 18 U.S.C. 4246(d). /1/ The court of appeals affirmed. 1. After petitioner was indicted in September of 1987, the district court conducted a competency hearing and found petitioner incompetent to stand trial. The court ordered him committed to the custody of the Attorney General for evaluation and treatment, in accordance with 18 U.S.C. 4241(d). /2/ Pet. App. B at 1198-1199. The court held a second competency hearing in July of 1988. At that hearing, Dr. Donald Butts, the psychiatrist who had evaluated petitioner at the Medical Center for Federal Prisoners in Springfield, Missouri, submitted a report concluding that petitioner was a paranoid schizophrenic, and that he was incompetent to stand trial and unlikely to become competent within a reasonable period of time. Dr. Butts testified that petitioner was "uncooperative, incoherent and very bellicose and threatening" when he arrived at the Springfield facility, and that although petitioner was placed in "the most secure unit * * * under very close observation," he destroyed his cell, had to be placed in restraints on at least one occasion, and was verbally abusive to staff members. After the hearing, the district court found that petitioner was not competent to stand trial and that he was unlikely to become competent in the foreseeable future. The court recommitted petitioner for further psychiatric evaluation. Pet. App. B at 1199. Thereafter, the acting warden of the Federal Correctional Institution at Terminal Island, California, where petitioner was hospitalized, filed a certificate requesting a commitment hearing pursuant to 18 U.S.C. 4246(a). /3/ At the hearing, the government introduced a report prepared by Dr. Jeanne Hetzel, Chief of Psychology Services at the Terminal Island facility, in which Dr. Hetzel noted that petitioner was "overtly psychotic" and "hostile" and that he had attempted to assault staff members and other inmates. Dr. Hetzel also testified about petitioner's "aggressive behavior" during his hospitalization, stating that he had made verbal threats toward staff members and inmates and had destroyed facilities at the institution and that on one occasion he had assaulted her by approaching her from behind and squeezing her neck between his hands. Dr. Hetzel agreed with Dr. Butts that petitioner suffered from paranoid schizophrenia, and she concluded that he presented a substantial risk to the safety of other persons. Pet. App. B at 1199. At the conclusion of the hearing, the district court found that petitioner was suffering from a mental disease or defect and that his release would create a substantial risk of harm to persons and property. Accordingly, the court ordered petitioner committed to the custody of the Attorney General for hospitalization and treatment pursuant to 18 U.S.C. 4246(d). Pet. App. B at 1200. 2. The court of appeals affirmed. Pet. App. B at 1197-1210. The court rejected petitioner's argument that the statute denied him equal protection by creating an impermissible distinction between dangerous mentally ill persons charged with federal crimes, who may be committed under Section 4246, and other dangerous mentally ill persons, who are not subject to the provisions of any federal commitment statute. The court concluded that the provisions of Section 4246 were "substantially related to important federal concerns." /4/ Pet. App. B at 1203. Specifically, the court found that the statute was narrowly tailored to serve the government's interest in the control and treatment of dangerous persons within the federal criminal justice system who have been found incompetent to stand trial. The court rejected petitioner's claim that because the government had chosen to regulate dangerous mentally ill persons charged with federal crimes, it was required to create a national system of commitment for all mentally ill persons who might create a danger to society. To hold otherwise, the court concluded, would "burden too heavily the federal government's compelling interest in administering its criminal justice system, and would precipitate a massive federal intrusion into a field that has generally belonged to the states." Pet. App. B at 1203. Petitioner also contended that Section 4246 violated the Due Process Clause of the Fifth Amendment by failing to provide for a jury trial to determine eligibility for commitment. Observing that "trial by jury is neither a necessary element of the fundamental fairness guaranteed by the due process clause, nor an essential component of accurate factfinding," the court concluded that in proceedings under Section 4246, "any additional procedural fairness ensured by a jury trial is outweighed by the substantial burden a jury would impose on the commitment process." Pet. App. B at 1206-1207 (citing McKeiver v. Pennsylvania, 403 U.S. 528, 543 (1971)). /5/ Finally, the court of appeals held that there was sufficient evidence to support the district court's finding that petitioner's release would present a substantial risk of harm to persons and property. The court rejected petitioner's claim that the Due Process Clause required the government to prove that he had "recently committed overt acts evincing his dangerousness" in order to justify his commitment under Section 4246. The court noted, however, that there was evidence of numerous acts committed by petitioner within a year of his commitment that indicated that he "posed a substantial risk of causing future harm." Those acts included petitioner's verbal and physical threats toward staff members and other inmates during his hospitalization, his destruction of cells in which he was housed, and his assault on a psychiatrist by approaching her from behind and squeezing her neck. The court concluded that these incidents, along with the testimony and reports of the mental health professionals who had treated petitioner, provided "ample evidence" to support the district court's finding of petitioner's dangerousness. Pet. App. B at 1208. Judge Nelson dissented. She concluded that petitioner's commitment under Section 4246 denied him equal protection because the statute provided for involuntary commitment "without the procedural safeguards of a jury trial to which other individuals charged with a federal crime are entitled." Pet. App. B at 1208-1210. ARGUMENT 1. Petitioner renews his contention (Pet. 11-32) that Section 4246 violates the equal protection component of the Fifth Amendment by creating an impermissible distinction between dangerous mentally ill persons who have been found incompetent to stand trial after being charged with federal crimes, and all other dangerous mentally ill persons. Initially, petitioner urges the Court (Pet. 11-15) to "clarify" the applicable standard of review by adopting the standard applied to gender-based classifications, under which the classification created by the statute must be "substantially related to * * * important governmental interest(s)" in order to survive an equal protection challenge. Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 441 (1985); see Craig v. Boren, 429 U.S. 190, 197 (1976). As petitioner acknowledges (Pet. 12-13), the Court's decisions involving equal protection challenges to procedures for involuntary commitment of mentally ill persons have indicated that the rational basis standard is the appropriate level of scrutiny, under which the challenged classification need only be rationally related to a legitimate governmental interest. See Jones v. United States, 463 U.S. 354, 362 n.10 (1983) (if Due Process Clause does not require that insanity acquittee be given procedural safeguards required in civil commitment hearing, "then there necessarily is a rational basis for equal protection purposes for distinguishing between civil commitment and commitment of insanity acquittees"); Jackson v. Indiana, 406 U.S. 715, 729 (1972) (State may not, "without reasonable justification," apply different standards for releasing incompetent defendants and other committed persons); Baxstrom v. Herold, 383 U.S. 107, 111-112 (1966) (equal protection requires that distinction "have some relevance to the purpose for which the classification is made"). In this case, however, there is no need for the Court to consider the question of the appropriate standard of review because the distinction created by Section 4246 is constitutionally permissible under either standard. /6/ Petitioner complains that Section 4246 violates equal protection because it only provides a standard for committing a small group of all dangerous mentally ill persons -- those who have been charged with federal crimes but are incompetent to stand trial -- while generally leaving the field of committing mentally ill persons to the States. As the court of appeals below noted, however, Section 4246's limited scope addresses a "unique federal concern." Pet. App. B at 1203. That concern involves both the need to provide control and treatment for dangerous mentally ill persons within federal jurisdiction, see Greenwood v. United States, 350 U.S. 366, 375 (1956), and the need to protect society from dangerous criminal defendants, see United States v. Salerno, 481 U.S. 739, 749-750 (1987) ("government's interest in preventing crime by arrestees is both legitimate and compelling"). The fact that Congress has chosen to create federal commitment proceedings for those persons already charged with federal crimes does not require it to create a "national system of commitment for all mentally ill individuals who might present a danger to society." Pet. App. B at 1203. /7/ Petitioner's reliance on Baxstrom v. Herold, 383 U.S. 106 (1966), and Jackson v. Indiana, 406 U.S. 715 (1972), for a contrary result is misplaced. In each of those cases, the Court sustained an equal protection challenge to a state statutory scheme that imposed different standards and procedures for civil commitment of a particular group of persons than were imposed by the State's general civil commitment provisions. /8/ In contrast, the federal statute at issue here deals only with the small set of dangerous mentally ill persons who come within the jurisdiction of the federal criminal justice system, and, as to them, it sets forth uniform standards and procedures for their commitment. See United States v. Antelope, 430 U.S. 641, 649 (1977). 2. Petitioner also contends (Pet. 32-38) that his commitment under Section 4246 denied him due process and equal protection because the determination of his dangerousness was made by the court, rather than by a jury. This Court has made clear, however, that "a civil commitment proceeding can in no sense be equated to a criminal prosecution," Addington v. Texas, 441 U.S. 418, 428 (1979), and that the procedural safeguards of a criminal trial need not be extended to a mentally ill person facing civil commitment, see Allen v. Illinois, 478 U.S. 364, 375 (1986) (Fifth Amendment privilege against self-incrimination does not apply in civil commitment proceedings); Addington, 441 U.S. at 427-431 (no requirement of proof beyond a reasonable doubt in civil commitment proceedings). Because trial by jury is neither an essential element of "fundamental fairness" nor a "necessary component of accurate factfinding," the court of appeals correctly held that there is no constitutional right to a jury determination of a defendant's eligibility for commitment under Section 4246. See McKeiver v. Pennsylvania, 403 U.S. 528, 543 (1971). Petitioner contends, however, (Pet. 34-37) that he is entitled to a jury trial in commitment proceedings under Section 4246 because those proceedings are "ancillary to a criminal prosecution." This Court rejected a similar argument in Allen. In that case, the petitioner was committed under an Illinois statute that provided for the involuntary commitment of mentally ill persons who had been found to be "sexually dangerous." 478 U.S. at 365-366. He argued that proceedings under the statute were "criminal" for purposes of the application of the Fifth Amendment privilege against self-incrimination, noting that the statute applied only to persons against whom criminal charges had been filed. Id. at 370. The Court rejected this claim, concluding that the State's decision "not to apply the Act to the larger class of mentally ill persons who might be found sexually dangerous does not somehow transform a civil proceeding into a criminal one." Ibid. Here, just as in Allen, the fact that Section 4246 applies only to mentally ill persons who have been charged with federal crimes does not require that persons subject to commitment under the statute receive the procedural protections applicable in criminal prosecutions. 3. Finally, petitioner contends (Pet. 38-43) that due process requires that a commitment under Section 4246 be based on proof that the defendant recently committed an "overt act" evidencing his dangerousness. While this Court has held that due process requires the government to "justify confinement by proof more substantial than a mere preponderance of the evidence," Addington v. Texas, 441 U.S. at 427, it has not imposed any constitutional limits on the type of evidence that must be introduced to support confinement. Cf. Jones v. United States, 463 U.S. at 365 (Court "never has held that 'violence' * * * is a prerequisite for a constitutional commitment"). In any event, the court of appeals found that petitioner had engaged in numerous acts during his hospitalization that manifested his dangerousness, including assaulting a psychiatrist, destroying his cell, and verbally and physically threatening staff members and other inmates. Thus, petitioner's commitment under Section 4246 was amply supported by evidence of recent dangerous acts. /9/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General NINA GOODMAN Attorney MARCH 1991 /1/ Section 4246(d) requires the district court to commit a defendant found incompetent to stand trial to the custody of the Attorney General if, after conducting a hearing, "the court finds, by clear and convincing evidence, that the (defendant) 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 defendant remains committed until he no longer poses a substantial risk of harm or until a State assumes responsibility for his treatment. /2/ Section 4241(d) provides that the district court "shall commit" a defendant to the custody of the Attorney General if the court finds, after a hearing, "that the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense." The defendant may be hospitalized for "such a reasonable period of time * * * as is necessary to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the trial to proceed." 18 U.S.C. 4241(d)(1). If, at the end of this period, the court determines that the defendant's mental condition has not improved sufficiently for trial to proceed, "the defendant is subject to the provisions of section 4246." 18 U.S.C. 4241(d). /3/ Commitment proceedings under 18 U.S.C. 4246 are initiated when the director of the facility in which the defendant is hospitalized files a certificate stating that the defendant meets the statutory criteria for commitment, see supra, note 1, and that "suitable arrangements for state custody and care of the (defendant) are not available." 18 U.S.C. 4246(a). /4/ The court declined to decide whether the challenged classification should be reviewed merely for rationality or whether a more stringent standard of review was appropriate, concluding that "the result in this case would be the same under either standard." Pet. App. B at 1201. /5/ The court also rejected petitioner's claim that the Sixth Amendment guarantees the right to jury trial in civil commitment proceedings, concluding that such proceedings serve a "regulatory, rather than punitive, purpose" and that the Sixth Amendment therefore has no application. Pet. App. B at 1205-1206. /6/ Petitioner does not claim that the decision of the court of appeals in this case conflicts with any decision of another court of appeals. He does assert (Pet. 13-14) that a conflict exists between Hickey v. Morris, 722 F.2d 543 (9th Cir. 1983), in which the Ninth Circuit stated that "heightened scrutiny" was appropriate in reviewing a classification relating to involuntary commitment, and United States v. Cohen, 733 F.2d 128 (D.C. Cir. 1984) (en banc), in which the District of Columbia Circuit applied the rational basis test in reviewing such a classification. As petitioner concedes, however, the statement in Hickey was dictum because that court ultimately concluded, as the court of appeals did here, that it was unnecessary to resolve the question of the appropriate standard of review. 722 F.2d at 546. /7/ As the court of appeals noted, this congressional choice is strongly rooted in federalism concerns. See S. Rep. No. 225, 98th Cong., 2d Sess. 250 (responsibility for commitment of mentally ill criminal defendants "is essentially a function of the States"); cf. United States v. Cohen, 733 F.2d at 137-138 & n.15 ("legislative authority in the general field of lunacy is reserved to the states"). /8/ In Baxstrom, the Court invalidated a New York statute that permitted the involuntary commitment of prisoners at the expiration of their prison terms without the finding of dangerousness or jury review that were required for all other civil commitments in New York. 383 U.S. at 110. In Jackson, the Court held that an Indiana statute that provided for the commitment of criminal defendants found incompetent to stand trial violated the Equal Protection Clause because it imposed more lenient standards for commitment and more stringent standards for release than were imposed by the State's general civil commitment procedures. 406 U.S. at 730. /9/ Petitioner asserts (Pet. 38-39) that the decision of the court of appeals conflicts with decisions of several district courts, which have held that involuntary commitment of a mentally ill person must be based on proof of the person's dangerousness as evidenced by an "act, attempt, or threat." See Suzuki v. Alba, 438 F. Supp. 1106, 1110 (D. Haw. 1977); Stamus v. Leonhardt, 414 F. Supp. 439, 451 (S.D. Iowa 1976); Doremus v. Farrell, 407 F. Supp. 509, 515 (D. Neb. 1975); Lynch v. Baxley, 386 F. Supp. 378, 391 (M.D. Ala. 1974); Lessard v. Schmidt, 349 F. Supp. 1078, 1093 (E.D. Wis. 1972). As petitioner acknowledges, however, the only other court of appeals that has considered this issue ruled, as the court of appeals did here, that due process does not require proof of an overt act to support a finding of dangerousness sufficient to justify involuntary commitment. See Project Release v. Prevost, 722 F.2d 960, 973-974 (2d Cir. 1983).