UNITED STATES of America v. Jeffrey I. COHEN, Appellant.

No. 81-1036.

United States Court of Appeals, District of Columbia Circuit.

Argued En Banc Oct. 27, 1982. Decided May 4, 1984.

Appeal from the United States District Court for the District of Columbia (Criminal No. 80-00382).

A. Franklin Burgess, Jr., Washington, D.C, with whom James Klein, Washington, D.C, was on brief, for appellant.

John R. Fisher, Asst. U.S. Atty., Washington, D.C, with whom Stanley S. Harris, U.S. Atty., Washington, D.C (at the time brief was filed), Michael W. Farrell, Asst. U.S. Atty., Washington, D.C, were on brief, for appellee. John H. Sturc, Asst. U.S. Atty., Washington, D.C, also entered an appearance for appellee.

Before ROBINSON, Chief Circuit Judge, WRIGHT, TAMM, WILKEY, WALD, MIKVA, EDWARDS, GINSBURG, BORK, and SCALIA, Circuit Judges, and MacKINNON, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge SCALIA, in which Circuit Judges TAMM, WILKEY, GINSBURG, BORK and Senior Circuit Judge MacKINNON join.

Concurring opinion filed by Circuit Judge WILKEY.

Concurring opinion filed by Circuit Judge MIKVA, in which Chief Judge SPOTTSWOOD W. ROBINSON, III and Circuit Judge J. SKELLY WRIGHT join.

Concurring opinion filed by Senior Circuit Judge MacKINNON.

Separate concurring statement filed by Circuit Judge HARRY T. EDWARDS.

Circuit Judge WALD concurs in the result only.

SCALIA, Circuit Judge: We hold today that procedures enacted by Congress for automatic commitment to mental institutions of federal criminal defendants successfully asserting the insanity defense do not violate the equal protection component of the due process clause of the Fifth Amendment merely because they are applicable only to persons charged in the District of Columbia.

I Appellant Jeffrey Cohen was arrested on July 23, 1980, near the embassy of the People's Republic of China. In his possession were three home-made bombs and a loaded 30.06 rifle. As he was being apprehended, Cohen attempted to ignite one of the bombs with a cigarette lighter, apparently in an attempt to kill himself. The next day he was charged with possession of unregistered destructive devices, a federal offense under 26 U.S.C § 5861(d) (1976). Following a determination of his competency to stand trial, Cohen was tried, initially found guilty as charged, and then, upon consideration of his uncontested insanity defense and testimony by a clinical psychologist as to his mental state at the time of the arrest, found not guilty by reason of insanity.

The court immediately ordered Cohen committed to Saint Elizabeths Hospital, a hospital for the mentally ill in the District of Columbia, pursuant to the provisions of D.CCode § 24-301 (1981). Shortly thereafter he received a hearing on his then present mental state, as the statute requires, and was recommitted. Cohen ap-

peals both commitment orders, contending that the statute's application of the commitment procedures only to defendants in the District of Columbia and not to other defendants tried for identical federal offenses elsewhere, constitutes an arbitrary classification and thereby deprives him of equal protection of the laws.^{Footnote 1}

The statute at issue here, D.C.Code § 24-301 (1981), is no stranger to this court. Its central provisions'establishing a special verdict of "not guilty by reason of insanity" applicable to all cases in which an insanity defense is raised,^{Footnote 2} and providing that a person acquitted by such verdict be automatically committed to a hospital for the mentally insane ^{Footnote 3} 'represented a conscious and direct congressional response to our opinion in Durham v. United States,  214 F.2d 862 (D.C.Cir.1954), where we abandoned the venerable M'Naghten rule and adopted a more lenient test to establish criminal insanity. Congress believed that the Durham test would " 'result in a flood of acquittals by reason of insanity and fear[ed] that these defendants would be immediately set loose.'" Lynch v. Overholser,  369 U.S. 705, 715, 82 S.Ct. 1063, 1070, 8 L.Ed.2d 211 (1962), quoting Krash, The Durham Rule and Judicial Administration of the Insanity Defense in the District of Columbia, 70 YALE LJ. 905, 941 (1961).

Once committed, the acquitted defendant is entitled to a judicial hearing within 50 days ^{Footnote 4} and at six-month intervals thereafter ^{Footnote 5} to determine his present mental state.

The former provision was also a response to one of our decisions, Bolton v. Harris,  395 F.2d 642 (D.C.Cir.1968). That ruling struck down the statute's automatic commitment provision and permitted the acquitted defendant to be held in a mental institution only long enough to prepare for and conduct a post-trial hearing to establish, by a preponderance of the evidence, that his present mental condition justified his continued incarceration. Id. at 651.

Congress found that the situation created by our decision posed a danger to society: This ruling [Bolton ] permits dangerous criminals ... to win acquittals of serious criminal charges on grounds of insanity by raising a mere reasonable doubt as to their sanity and then to escape hospital commitment because the government is unable to prove their insanity following acquittal by a preponderance of the evidence. The result is a revolving door which ... allows defendants "to have it both ways"'to escape both conviction and commitment to a hospital.

H.R.REP.

NO.

907, 91st Cong., 2d Sess. 74 (1970). Accordingly, Congress amended § 24-301 to reestablish the mandatory commitment feature, to shift the burden of establishing an insanity defense at trial to the defendant, ^{Footnote 6} and to provide for the 50day and subsequent six-month hearings'in which (unlike the hearing required by Bolton) the acquitted defendant bears the burden of establishing his sanity. If he can prove, "by a preponderance of the evidence," see D.C.Code § 24-301(d)(2)(B), (k)(3), that he is no longer mentally ill and dangerous to himself or others, at any of the post-commitment hearings, the statute requires that he be released. Jones v. United States, 432 A.2d 364, 372 & n. 16 (D.C. 1981) (en banc), affd, '¦ U.S. 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983).

Outside of the District of Columbia things are quite different. Several states have enacted automatic criminal commitment procedures similar to D.C.Code § 24301, ^{Footnote 7} but they are applicable only to persons charged with state offenses. ^{Footnote 8}

is no comparable federal statutory authority for the commitment of defendants who have successfully presented an insanity defense to a federal criminal charge in United States District Courts in the several states. See United States v. McCracken,  488 F.2d 406, 416 (5th Cir.1974). Indeed, only in the District of Columbia is the special verdict prerequisite to such commitment ("not guilty by reason of insanity") statutorily required. Outside the District, acquitted federal defendants are released from federal custody and will remain free from any custody unless committed by the state through its generally applicable civil commitment procedures. Those procedures. whose nature varies from state to state, are required by the Supreme Court's decision in Addington v. Texas,  441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), to employ at a minimum a "clear and convincing" standard for commitment. Thus, the "gap" eliminated by Congress in the District of Columbia persists elsewhere, creating the disparity in treatment among federal defendants which forms the basis of the equal protection challenge in this action.

II Before proceeding to the merits of the appeal, a few preliminary issues can usefully be disposed of. -----, A. Interpretation of § 24-301(d)(l) In his initial brief appellant asserted that the question of the constitutionality of § 24-301(d)(l) did not have to be reached. He argued that, to avoid constitutional doubt, the statute should not be interpreted "to apply to federal as well as D.C.Code There offenses," Appellant's Brief at 27, and should govern "only proceedings involving local criminal offenses," id. at 30. The government met this argument by pointing out, among other things, that such an interpretation would avoid one constitutional issue of equal protection only by raising another'namely, "the establishment of one policy for persons found not guilty of District of Columbia Code offenses by reason of insanity and a different policy for those similarly acquitted of United States Code offenses," Appellee's Brief at 35; and that it is an ephemeral equal protection guarantee which can be avoided by simply prosecuting the defendant for the same offense

set forth in the D.C.Code instead of the U.S.Code, Appellee's Supplemental Brief for the En Banc Court at 45.

Appellant has responded by essentially abandoning the assertion that this case can be disposed of on statutory interpretation grounds. The issue, he now maintains, is "whether Congress could legitimately single out persons in the District of Columbia for [burdens] not imposed upon citizens everywhere else, when Congress has chosen to subject all to substantively identical laws furthering the same national interest __ Whether the statute could be packaged in a local rather than a federal code is not relevant once Congress has declared that nationwide concerns are at stake." Appellant's Reply Brief for the En Banc Court at 2. Obviously, if the equal protection inquiry does not depend upon whether the substantive offense is contained in the D.C.Code or the U.S.Code, we would not avoid the constitutional doubt by unnaturally construing the provision under attack to apply only to the former. In any event, the legislative history of the provision and decisions of this court indicate its intended application to federal crimes. In 1955, when Congress amended § 24-301 specifically to overrule our decision in Wear v. United States,  218 F.2d 24 (D.C.Cir.1954)'which had held that the more lenient provisions relating to pretrial psychiatric examinations contained in 18 U.S.C. § 4244 superseded the conflicting provisions of D.C.Code § 24-301'it clearly contemplated the applicability of § 24-301 to all offenses committed in the District, including U.S.Code offenses. See H.R.REP, No. 892, 84th Cong., 1st Sess. 11 (1955). And we have implemented the provision in accordance with that understanding. See Bolton v. Harris, supra. ^{Footnote 9}

We therefore interpret the statute'as it reads'to apply to all offenses prosecuted in the District of Columbia.

B. Standard of Review ^{Footnote 10}

Appellant asserts that the application of equal protection principles to the

present case must be subject to the socalled "strict scrutiny" test set forth in such cases as In re Griffiths,  413 U.S. 717, 721-22, 93 S.Ct, 2851, 2854-55, 37 L.Ed.2d 910 (1973). That test is applied to legislation that discriminates against a "suspect class," e.g., a minority racial group, see McLaugh'lin v. Florida,  379 U.S. 184, 19192, 85'S.Ct. 283, 287-88, 13 L.Ed.2d 222 (1964), or that impinges upon a "fundamental" right or interest, see, e.g., Shapiro v. Thompson,  394 U.S. 618, 638, 89 S.Ct. neither here. In the vast majority of equal protection cases, the focus, for purposes of determining whether a "fundamental interest" is involved, is not upon the punishment or other imposition to which the complaining party has been subjected, but rather upon the activity of the complaining party which has been made the reason for the punishment or imposition. See, e.g., Jones v. Helms,  452 U.S. 412, 425, 101 S.Ct. 2434, 2443, 69 L.Ed.2d 118 (1981). Thus, the rational basis justification normally required to sustain commercial regulation against equal protection attack is not replaced by a "strict scrutiny" test when the consequence of violating the regulation is a deprivation of physical freedom through a jail term, e.g., Seagram & Sons v. Hostetter,  384 U.S. 35, 50-51, 58, 86 S.Ct. 1254, 133

1263-1264, 1268, 16 L.Ed.2d 336 (1966); nor is the strict scrutiny normally applicable to laws abridging the "fundamental right" to travel, Shapiro v. Thompson, supra, reduced to a rational basis test merely because the deprivation at issue is a nonfundamental entitlement to government benefits, cf. Zobel v. Williams,  457 U.S. 55, 102 S.Ct. 2309, 72 L.Ed.2d 672 (1982). If this focus of inquiry were adopted in the present case, the appellant would of course have no arguable claim to a strict scrutiny standard, since the activity at issue (commission of a federal crime while insane) is hardly a fundamental or even a legitimate one.

In the present case, however, the equal protection attack is directed not at the nature or effect of a substantive law (the ban on possession of unregistered firearms and destructive devices) but at the inequity of the punishment or imposition prescribed for the appellant's violation. It could be argued that in such cases the focus of the "fundamental interest" inquiry shifts as well, from