If the issue of insanity is raised by notice as provided in Rule 12.2 of the Federal Rules of Criminal Procedure, on motion of either party or the court, the trier of fact shall be instructed to find the defendant (1) guilty, (2) not guilty, or (3) not guilty only by reason of insanity. See 18 U.S.C. § 4242(b). Section 4243 of Title 18 sets forth a procedure for automatic commitment of persons found not guilty only by reason of insanity until they can establish their entitlement to release. Persons found not guilty only by reason of insanity are automatically committed pending a hearing, which must be held within 40 days, on the person's present mental state and dangerousness. A psychiatric or psychological examination and report are required prior to the hearing. At the hearing, the burden of proof is on the committed person to prove that release would not create a substantial risk of bodily injury to, or serious damage to the property of, another person due to a present mental disease or defect. If the offense for which the defendant was tried involved bodily injury, serious property damage, or a substantial risk thereof, the defendant must sustain the burden of proof by clear and convincing evidence. With respect to any other offense, the defendant has the burden of proof by the preponderance of the evidence. The Supreme Court has reviewed a similar District of Columbia statute and upheld its constitutionality. See Jones v. United States, 463 U.S. 354 (1983).
If the defendant does not meet this burden, the Bureau of Prisons undertakes to place the defendant with the State where the crime was committed or of which State the defendant is a resident. Regardless of whether a State voluntarily accepts the inmate or whether the State requires the Federal authorities to involuntarily commit the inmate to State custody under 18 U.S.C. § 4247(i)(B), the State cannot discharge the inmate until after it has obtained a discharge order under 18 U.S.C. § 4243(f) from the Federal committing court.
[cited in JM 9-18.000]