During Mrs. Mullen's trial without jury in the Court of General Sessions on a misdemeanor charge of simple assault,1 the court sua sponte adjourned the proceedings and committed her to Saint Elizabeths Hospital under D.C. Code § 24-301(a) (1961) [hereinafter Subsection (a)] for a determination of her competency to stand trial.2 The hospital reported her competent. But it also reported that she suffered from a "personality pattern disturbance, paranoid personality," both at the time of the examination and at the time of the offense. The court thereupon found her competent to stand trial, and, after hearing further testimony, found her not guilty by reason of insanity, although she did not raise that defense and objected to the court's considering it. On the Government's motion, the court held a hearing and committed her to Saint Elizabeths expressly pursuant to Subsection (a) which provides that "prior to the imposition of sentence" a person may be committed if found of "unsound mind," or "mentally incompetent to stand trial." The subsection specifies no standard for release, but the order provided for confinement until she could meet the standards for release applied to the civilly committed.

Appellee then petitioned the District Court for a writ of habeas corpus, claiming inter alia that the Court of General Sessions had no jurisdiction to commit her under Subsection (a).3 The District Court issued the writ and ordered her released, on the ground that Subsection (a) did not empower the court to act after it entered the verdict of not guilty by reason of insanity. The Government appeals.4 We affirm.

* Since the Supreme Court's decision in Lynch v. Overholser,5 Subsection (a) has been used not only for commitment for examination of competency to stand trial but also for the commitment after trial of those found not guilty by reason of insanity over their objection.6 Lynch was found not guilty by reason of insanity, although he sought to plead guilty, and was committed under D.C.Code § 24-301(d) (1961) [hereinafter Subsection (d)], which requires automatic commitment upon an acquittal based "solely on the ground that * * * [the defendant] was insane" at the time of the crime. The Supreme Court held that Congress did not intend to allow automatic commitment without a hearing on the issue of present insanity when the defense of insanity is thrust upon a defendant who objects.

The Court concluded: "We decide in this case only that if * * * the defendant, despite his own assertions of sanity, is found not guilty by reason of insanity, § 24-301(d) does not apply." (Emphasis supplied.) It added that: "If commitment is then considered warranted, it must be accomplished either by resorting to § 24-301(a) or by recourse to the civil commitment provisions * * *."7 In Cameron v. Fisher, 116 U.S.App.D.C. 9, 320 F.2d 731 (1963), we considered the Supreme Court's reference to Subsection (a) as an alternative commitment procedure. We said that the "actual holding of the Court in Lynch * * * was not with respect to Section 301(a). * * * [T]he holding was that the mandatory commitment requirement of Section 301(d) does not apply to a person acquitted on the ground of insanity when he * * * sought to plead guilty." Id. at 12, 320 F.2d at 734.

Although the availability of Subsection (a) was not urged in Lynch, or in any other case in any court as far as we are aware, and although its availability was unnecessary to the disposition of the question whether Subsection (d) applies to one who refuses to raise the insanity defense, the Court said, "it appears"8 that Subsection (a) is available for commitment of those acquitted by reason of insanity over their objection. But it also said that the legislative history of Subsection (d) showed that Congress was concerned only with commitment of those who had "pleaded insanity as a defense";9 that mandatory commitment for those who refused to plead the insanity defense would be "out of harmony with the awareness that Congress has * * * shown for safeguarding those suspected of mental incapacity against improvident confinement"10 in the civil commitment provisions; and finally that alternative commitment procedures, including civil commitment, would effectuate the legislative goal of protecting the public against the dangerously insane and yet aviod "improvident confinement."11 Based upon these considerations, the Court concluded that Congress did not intend Subsection (d) to be applicable to persons who refuse to raise the insanity defense. The Court's comment — that "it appears [Subsection (a) is] * * * available" — must be viewed as "going beyond" the point "presented for decision" in Lynch. Hence, that comment is not controlling here, where "the very point is presented for decision." See Cohens v. Commonwealth of Virginia, 19 U.S. [6 Wheat.] 264, 398, 5 L. Ed. 257 (1821).

[The Supreme Court's] * * * reference to Section 301(a), along with civil commitment, as means for securing adjudication of unsoundness of mind, when a commitment under the mandatory provisions of Section 301 (d) is not proper * * * was not a holding that Section 301(a) was available after the criminal charge which brought the person into court had been entirely disposed of. The Court referred to Section 301(a) in connection with the "pretrial commitment" of an accused antedating a finding of guilt. It is in this light that we read the Court's further statement that since the inquiry under Section 301(a) "may be undertaken at any time `prior to the imposition of sentence,' it appears to be as available after the jury returns a verdict of not guilty by reason of insanity as before trial." * * * But surely the time available after verdict of not guilty by reason of insanity, within which it was thus thought a commitment under Section 301 (a) for unsoundness of mind might be made, was not intended by the Court to be extended beyond the time the criminal charge is decided and the question of custody incident to the disposition of the charge is determined. 116 U.S.App.D.C. at 12, 320 F.2d at 734 (emphasis supplied).

Accordingly, we held in Fisher that, notwithstanding the Supreme Court's dictum in Lynch, "the [trial court] * * * at the time of its order committing appellee to St. Elizabeths pursuant to a hearing under Section 301(a), was without jurisdiction of the case for the purpose of such commitment." Ibid.

The Government argues that Fisher is not controlling, because there a full year had elapsed between the time the defendant was found not guilty by reason of insanity and the time the Government invoked Subsection (a). Here, it says, proceedings were instituted minutes after the judge's verdict. We think Fisher does not turn on length of time. When a person has been found not guilty by reason of insanity, "the criminal charge is decided,"12 and there is no "question of custody incident to the disposition of the charge" unless some statute requires further disposition. The language of Subsection (a) does not expressly provide for further disposition, and indeed seems to exclude it. We read the subsection as authorizing commitment only "prior to the imposition of sentence or prior to the expiration of any period of probation." But there can be no sentence or probation period upon a verdict of not guilty, by reason of insanity or otherwise.13

Our conclusion that Subsection (a) does not authorize commitment after a verdict of not guilty by reason of insanity is buttressed by comparing Subsection (a) with Subsection (d), enacted at the same time. In Subsection (d) Congress expressly requires disposition by commitment.14 The absence of any comparable explicit direction or authorization in Subsection (a) makes clear that the subsection was not intended for post-verdict commitment.

There is another reason why Subsection (a) should not be read as authorizing the post-verdict commitment of respondent. When "it shall appear to the court from [its] own observations, or from prima facie evidence submitted to the court, that the accused is of unsound mind or * * * mentally incompetent so as to be unable" to stand trial, this subsection authorizes the court to confine him for the "reasonable" time required for "examination and observation and for care and treatment if * * * necessary." But the subsection further provides that if the hospital reports that the person is of unsound mind or mentally incompetent, the court may commit him to a mental hospital unless he or the Government objects, in which event the court must hold a hearing to determine "the competency of the accused to stand trial." Thus, although the section speaks of both unsoundness of mind and incompetency to stand trial, it empowers the court to hold a hearing only to determine competency.15

We think, moreover, that under the logic of the Supreme Court's recent decision in Baxstrom v. Herold, 383 U.S. 107, 86 S. Ct. 760, 15 L. Ed. 2d 620 (1966), serious constitutional doubts would attend any construction of Subsection (a) which authorized post-verdict indefinite confinement.

Baxstrom involved a New York statute16 which provided that when a prisoner, placed in a mental hospital while serving his time, was reaching the end of his sentence, he could be committed to a mental hospital simply upon a certificate of the hospital superintendent that he was insane and a determination by the court that he "may require care and treatment." Under that statute, Baxstrom, unlike all others civilly committed, (1) was not entitled to a de novo review by a jury trial of the determination that he was insane,17 and (2) could be sent to a hospital for the dangerously insane — where such substantive privileges as the right to receive mail and visitors were limited — without a hearing to determine his suitability for such confinement.18

New York sought to justify this differential classification both for purposes of commitment and conditions of confinement on the ground that prisoners found insane during their sentence had "dangerous or criminal" propensities, and were therefore distinguishable from others subject to civil commitment. The Supreme Court struck down the New York system as a violation of the requirements of equal protection of the law. The Court held that "dangerous or criminal" propensities could not affect the procedures for commitment:

Classification of mentally ill persons as either insane or dangerously insane of course may be a reasonable distinction for purposes of determining the type of custodial or medical care to be given, but it has no relevance whatever in the context of the opportunity to show whether a person is mentally ill at all." 383 U.S. at 111, 86 S.Ct. at 763. (Emphasis in original.)

And the Court also held that conditions of confinement may not be determined arbitrarily:

While we may assume that transfer among like mental hospitals is a purely administrative function, where, as here, the State has created functionally distinct institutions, classification of patients for involuntary commitment to one of these institutions may not be wholly arbitrary. 383 U.S. at 114, 86 S.Ct. at 764.

In the District of Columbia, the differences between commitment under Subsection (a) and civil commitment under the 1964 Hospitalization of the Mentally Ill Act [hereinafter 1964 Act] are more pronounced than the differences struck down by the Supreme Court in Baxstrom.19 Among the commitment procedures guaranteed by the 1964 Act — but not by Subsection (a) — are the rights to a separate hearing before the Mental Health Commission and to a de novo judicial hearing, with a jury if desired, on the issue of insanity.20 Among the conditions of confinement guaranteed to those committed by the Act — but not by Subsection (a) — are (1) the right to a judicial determination as to whether "other alternative courses of treatment" short of full-time confinement would be appropriate;21 (2) the right to a complete examination every six months to determine the patient's mental health;22 (3) the right to an examination performed by an independent practitioner every six months;23 and (4) the right to receive mail, to hold property and enter into contracts, to hold a driver's license, and to vote.24

The Government here seeks to justify these differences on the ground that "the accused has been found not guilty, solely by reason of [her] mental condition, of a charge of crime" and thus presumably constitutes a greater danger to the public than those civilly committed.25 This justification has found expression in sevof our cases, and was the basis for Congressional adoption of D.C.Code § 24-301 in its present form in 1955.26 It is similar to the justification offered by New York in support of the procedures by which Baxstrom was committed.

The petitioner in Baxstrom had completed his sentence. The respondent here was never under sentence. But both had been involved in prior criminal activity, both were summarily committed because of it, and both could seek release by habeas corpus. The Supreme Court struck down the New York system not because Baxstrom was reaching the end of his sentence, but because it held dangerousness is not relevant to the procedures for determining whether a "person is mentally ill at all."27 And the Court must have concluded that habeas corpus was no substitute for a full hearing, for the Court did not mention that remedy, although New York had urged it as an adequate safeguard.28 Baxstrom thus might be said to require the conclusion that, while prior criminal conduct is relevant to the determination whether a person is mentally ill and dangerous, it cannot justify denial of procedural safeguards for that determination.

Baxstrom might also be said to require the conclusion that, while prior criminal conduct is a relevant consideration for determining the conditions of custodial care, it does not provide an automatic basis for allowing significant and arbitrary differences in such conditions. It is not clear whether all of the rights under the 1964 Act are accorded independently of the Act to those committed under Subsection (a). The fact is, however, that Congress has protected these rights with express care for those civilly committed and has not done so for those committed under Subsection (a).29

Under Baxstrom, however, it may be argued that differences in the consequences of confinement must be justified by rational differences inhering in the individual's mental illness and his need for treatment. The 1964 Act requires this justification for those committed under it; it spells out specific requirements for curtailing the confinement rights of those incapable of exercising them.30 And there may be no rational basis for limiting rights specifically designed to insure more adequate care, such as the right to be re-examined every six months, to those committed under the Act.31

The Government seems to suggest that, even if Mrs. Mullen is entitled to the benefits of civil commitment, she in fact received them. There is no transcript of the commitment hearing in the Court of General Sessions, although the trial judge filed a memorandum opinion four months after the event describing what had occurred.32 The Government relies on this opinion to demonstrate that the judge determined the respondent's mental condition under the standards embodied in the civil commitment provisions, that he instructed the hospital to apply civil release standards, and that he required that she be given all of the custodial benefits given to those civilly committed. Thus, it claims, respondent was not prejudiced by commitment proceedings under Subsection (a).

The trial judge's memorandum opinion makes it clear that several elements of a civil commitment determination were absent. First, there was no hearing before the Mental Health Commission prior to the hearing before the court, as there is for those civilly committed. Second, although the trial judge indicated that if requested he would have granted the de novo jury determination provided by the 1964 Act, it does not appear that he advised Mrs. Mullen of that right, as the Act requires.33 Finally, the trial judge made no determination whether alternative courses of treatment existed short of full-time confinement, as is also required by the Act.

Subsection (a) did not authorize the trial judge's actions in affording a hearing to determine mental condition for commitment purposes, in applying the release standards of the 1964 Act, and in extending to Mrs. Mullen confinement rights which the 1964 Act guarantees only to those civilly committed.34 We cannot confer upon the Court of General Sessions authority to impose conditions reserved for civil commitment proceedings, since Congress has given the District Court exclusive jurisdiction over such proceedings.35

To import all of the civil standards into Subsection (a), and thus to avoid the constitutional difficulties suggested by Baxstrom v. Herold, we would have to rewrite completely that section as well as the Hospitalization of the Mentally Ill Act. We are not willing to do so. As the Supreme Court has said:

It must be remembered that "[a]lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute * * *" or judicially rewriting it. Scales v. United States * * * [367 U.S. 203, 211, 81 S. Ct. 1469, 1477, 6 L. Ed. 2d 782]. To put the matter another way, this Court will not consider the abstract question of whether Congress might have enacted a valid statute but instead must ask whether the statute that Congress did enact will permissibly bear a construction rendering it free from constitutional defects. (Aptheker v. Secretary of State, 378 U.S. 500, 515, 84 S. Ct. 1659, 1668, 12 L. Ed. 2d 992 (1964)).

We thus conclude that Subsection (a) is inapplicable to appellee. If the Government desires to commit Mrs. Mullen, it must institute civil commitment proceedings in order to do so. The 1964 Act provides adequate emergency procedures36 by which a person who may be mentally ill and dangerous can be confined during the pendency of the civil commitment proceedings.

Affirmed.