If, after the competency hearing, the court finds by a preponderance of the evidence that the defendant is presently incompetent to stand trial, the court must commit the defendant to the custody of the Attorney General. The Attorney General must then place the defendant in a suitable facility for treatment for a reasonable period of time, not to exceed four months, to determine whether there is a substantial probability that in the foreseeable future, the defendant will attain the capacity to permit the trial to proceed. See 18 U.S.C. § 4241(d). This commitment to the custody of the Attorney General for treatment is mandatory. United States v. Shaway, 865 F.2d 856 (7th Cir. 1989); United States v. Donofrio, 896 F.2d 1301 (11th Cir.), cert. denied, 497 U.S. 1005 (1990).
If, after the initial period of the treatment, the court finds that there is a substantial probability that the defendant will attain the capacity to permit the trial to proceed within an additional reasonable period of time, the Attorney General shall continue to hospitalize the defendant for treatment for an additional reasonable period of time until the defendant regains competence or the pending charges are disposed of according to law. 18 U.S.C. § 4241(d)(2).
When the director of the facility in which the defendant is hospitalized determines that the defendant has recovered his or her competency to stand trial, the director must file a certificate to that effect with the clerk of the court that ordered the commitment. The court then will hold another competency hearing. If the court finds by a preponderance of the evidence that the defendant has recovered to the extent that he/she is able to understand the nature and consequences of the proceedings against him/her and to assist properly in his/her defense, the court shall order the defendant's immediate discharge from the facility in which the defendant is hospitalized and set a date for trial. The defendant is then subject to the normal release and detention provisions of 18 U.S.C. §§ 3141 et seq., which apply to all criminal defendants. 18 U.S.C. § 4241(e).