Continued involuntary commitment standards established

Where attorneys failed to provide the district court with the factors, statistical risk predictors or other factual parameters bearing on whether the failure of an individual suffering from a mental illness to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment would result in “a substantial risk of bodily injury to another person or serious damage to property of another,” the district court’s decision was vacated.

Background

This appeal presents two consequential questions relating to the continued involuntary commitment of those afflicted with a mental illness. First, is the proof standard necessary to support revocation of conditional discharge under 18 U.S.C. § 4246(f). Second, is the process by which the district court should make and support its crucial findings on dangerousness under § 4246(f).

Proof standard

Congress inserted no proof standard. That conclusion is fortified by Congress inserting two other proof standards elsewhere in § 4246. The legislative history 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.

This court concludes the statutory text, the legislative history, consistency and good sense 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, that standard applies to both determinations necessary for revocation under § 4246(f): (1) the failure to comply with a conditional discharge treatment regimen and (2) whether that failure gives rise to dangerousness and revocation.

Dangerousness inquiry

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.” This court has not previously discussed at length the applicable factors for making and supporting the second part of the statutory standard, namely, the dangerousness determination.

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; (2) the individual presents a risk of substantial self-harm, including history and threats of self-harm; (3) the individual presents a risk of inflicting substantial bodily harm to others, including history and threats; (4) the individual’s behavior places others in reasonable fear of substantial bodily harm; (5) the individual is unable to protect and care for himself, including inability to provide his basic physical needs; (6) the individual presents a danger to persons in his care, including inability to provide for their basic physical needs; (7) the individual has impaired judgment; (8) the individual refuses or is unable to consent to voluntary treatment, including inability to recognize or understand his need for care; (9) the individual has a history of mental illness, including prior treatment and hospitalization; (10) the individual has a history of noncompliance with mental health treatments; (11) the individual’s need for treatment cannot be adequately addressed by family, available community programs or less-restrictive treatment alternatives and (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.

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, 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.

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.

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.

Vacated and remanded.

Concurring opinion

Agee, J., concurring in the judgment:

I agree with the majority that § 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. 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.

United States v. Perkins, Case No. 20-7024, May 4, 2023. 4th Cir. (Volk), from EDNC at Raleigh (Britt). Jennifer Claire Leisten for Appellant. Genna Danelle Petre for Appellee. VLW 023-2-128. 112 pp.