This appeal is from an order entered 27 December 1974 by the district court denying a request by the superintendent of Saint Elizabeths Hospital for the conditional release of one of the hospital's mental patients, Lewis C. Ecker, II.1 Appellant Ecker urges this court to reverse the decision of the district court and direct that court to order his conditional release in accordance with the conditions outlined in the superintendent's recommendation.

He bases his attack on the district court's findings of facts and conclusions of law on four separate grounds. Appellant argues (1) that the district court applied an improper standard of review and, regardless of the proper standard, made findings of fact and conclusions of law not based on evidence in the record; (2) that the trial court erred in placing the burden of proof on the patient in this conditional release proceeding; (3) that rejection of the hospital's prescription of conditional release unlawfully deprived appellant of his statutory right to treatment; and (4) that the requirement of district court approval for hospital-initiated, conditional release proposals deprived appellant of equal protection of the laws. We find that the district court was correct in its actions, tested against all four issues raised, and therefore affirm its judgment.

On 22 May 1967 a twenty-four year old senatorial aide was brutally raped and murdered in her apartment in Southwest Washington, D. C. Six days later Lewis C. Ecker, II, was arrested and charged with commission of these offenses. Upon Ecker's motion for a mental examination to determine his competency to stand trial and his mental condition at the time of the alleged offenses, an order issued transferring appellant from the District of Columbia Jail to Saint Elizabeths Hospital. After almost three months of examination the hospital staff members involved with the case unanimously agreed that appellant was mentally ill, but competent to stand trial, and that the alleged offenses, if committed by him, were caused by his mental illness. Appellant's condition was tentatively diagnosed as sociopathic personality disturbance, sexual deviation (sadism) (with organic features). In addition, the chairman of the hospital staff conference on Ecker's competency concluded that appellant was "one of the sickest people we've ever had in this hospital."2

Having been found competent to stand trial, appellant elected to waive a jury and submit his case to the court on stipulated facts. Judge John L. Smith of the United States District Court for the District of Columbia found Ecker not guilty by reason of insanity on separate counts of felony murder and rape. At the hearing held immediately thereafter to determine appellant's present mental state, Judge Smith concluded that Ecker was suffering from a mental illness and if released, he would be likely to injure himself or others.3 Accordingly, Ecker was committed to Saint Elizabeths Hospital pursuant to 24 D.C.Code § 301(d)(1).4

On 4 January 1973 a letter from the superintendent of Saint Elizabeths Hospital recommending appellant's conditional release was filed in the district court. The superintendent asked the court to approve a conditional release program whereby appellant could attend vocational classes in Arlington, Virginia, and visit his parents' home without hospital supervision. At a hearing on 30 January 1973 the government opposed that portion of the hospital's proposal recommending unsupervised home visitation and took no position on the proposed educational program other than seeking to insure that it was narrowly circumscribed and carefully supervised. Dr. George Saiger, a staff psychiatrist at the hospital and the author of the conditional release proposal, was the only witness at the hearing. At the close of the hearing Judge Smith denied the hospital's conditional release proposal in toto.

Appellant noted an appeal to this court and moved for summary reversal on the ground that the district court had abused its discretion in denying the hospital's proposal. On 29 May 1973 this court denied appellant's motion and sua sponte summarily affirmed the decision of the district court.5

Only three months after this court's decision in Ecker I the superintendent of Saint Elizabeths again certified that appellant was ready for conditional release. The second conditional release proposal differed from the first proposal only in that it outlined several stages whereby appellant's access to the community could be gradually increased at the hospital's discretion. Throughout all stages appellant would be required to live at the hospital and participate in therapy there, but from the first day of his conditional release there would be unsupervised contact with the community.

The government objected to this second proposal, and pursuant to section 24 D.C.Code § 301(e)6 a hearing was held in the district court. Four expert witnesses testified at this hearing, and all four recommended court approval for the hospital's conditional release request. Three of these witnesses were psychiatrists called by the defense; the fourth was a psychologist called by the government. Judge Smith took the matter under advisement, and on 27 December 1974 entered findings of fact and conclusions of law and an order denying the hospital's proposal.

Ecker complains that the district court applied an overly broad standard of review when it decided to reject the conditional release program proffered by Saint Elizabeths Hospital. In support of his position appellant primarily relies on Tribby v. Cameron.7 Like Ecker, the patient in Tribby was committed pursuant to 24 D.C.Code § 301(d)(1), which provides that a person tried on a criminal charge and acquitted solely on the ground that he was insane at the time of the offense shall be confined in a hospital for the mentally ill. When the patient in Tribby filed a writ of habeas corpus complaining that he was not receiving adequate treatment, this court held that he was entitled to a hearing and findings on the issue of treatment and remanded the case for further proceedings. In determining the adequacy of the patient's treatment, Senior Judge Edgerton suggested that on remand the district court should apply the following standard of limited judicial review:

We do not suggest that the court should or can decide what particular treatment this patient requires. The court's function here resembles ours when we review agency action. We do not decide whether the agency has made the best decision, but only make sure that it has made a permissible and reasonable decision in view of the relevant information and within a broad range of discretion.8

We find no basis for concluding that this narrow standard of review on the issue of adequate treatment also applies to hospital certifications for conditional release. Tribby was a "decision relat(ing) essentially to the internal administration of the hospital"9 and did not involve the public safety considerations inherent in a conditional or unconditional release proposal. When a district court is asked to review the medical judgment of a hospital staff on a question of internal administration its function does "resemble( ) ours when we review agency action," and in deference to medical expertise the hospital should be allowed to operate "within a broad range of discretion." On the other hand, when a district court is asked to review a conditional release certification the basic policy underlying section 301(e) comes into play, and the court must decide whether the hospital's proposal "provide(s) treatment and cure for the individual in manner which affords reasonable assurance for the public safety."10

The narrow standard of review described in Tribby only applies when public safety is not a factor; it has no applicability in release proceedings (conditional or unconditional) under section 301(e).11 To anticipate a bit what may be distilled from our decisions in this field, which we discuss below, the agency analogy is only pertinent within the hospital grounds. In that area we and the district court may give a degree of deference to the hospital's judgment equivalent to the deference we accord agency action; when, and if, the patient is to cross the hospital boundary, then other factors affecting the public come into play, and both the statute and our decisions impose a different role and far heavier responsibilities on the courts.

We turn now to an analysis of section 301(e) and the case law dealing with this statute. The language of the statute itself describes an active, rather than passive, role for the district court:

(I)f, after a hearing and weighing the evidence, the court shall find that the condition of such person warrants his conditional release, the court shall order his release under such conditions as the court shall see fit, or, if the court does not so find, the court shall order such person returned to such hospital.12

Significantly for our purpose here, the language of section 301(e) with reference to both conditional and unconditional release proceedings is almost identical; in each case the district court is to "weigh the evidence" after "a hearing" (if a hearing is desired by the government or the court), which is exactly what a district court does when deciding any matter de novo.

This court first construed the conditional release provision of section 301(e) in Hough v. United States.13 In this case of first impression the court reversed the district court's order denying the hospital's conditional release proposal and directed the district court on remand to reconsider its order in light of this court's new construction of the statute. In Hough Judge Bazelon explained,

We must construe (the conditional release provision of section 301(e)) in light of the basic policy underlying the statute. The policy, as we read the legislative history, is to provide treatment and cure for the individual in a manner which affords reasonable assurance for the public safety. Accordingly, we think that to order conditional release upon a challenged certification the court must conclude that the individual has recovered sufficiently so that under the proposed conditions or under conditions which the statute empowers the court to impose "as (it) shall see fit," "such person will not in the reasonable future be dangerous to himself or others." This gives effect to the legislative distinction between conditional and unconditional release without diluting the statute's grant of judicial power to protect the public safety.14

Appellant contends that the district court is restricted to determining whether the hospital's certification for conditional release is supported by the record, i. e., "the court must approve (his) conditional release if the evidence in the record provides a reasonable basis for the hospital's determination that conditional release is appropriate."15 There is some language at the conclusion of Hough which can be read to support appellant's contention.16 This language, however, must be read in context with the rest of Judge Bazelon's opinion. Appellant's interpretation belies the public safety considerations underlying Judge Bazelon's construction of the statute and seriously "dilut(es) the statute's grant of judicial power to protect the public safety."17

In its carefully considered construction of section 301(e)'s conditional release provision, the Hough court held that to order conditional release on a hospital recommendation challenged by the government the district court must conclude that the patient has sufficiently recovered so that under the specified conditions he will not in the reasonable future endanger himself or others.18 Clearly, in Hough Judges Bazelon and Fahy recognize that the district court, not the hospital, has the final authority to decide whether a patient will be conditionally released, i. e., the district court is obligated to make its own independent judicial determination.

Similarly, in United States v. McNeil,19 Judges Bazelon, MacKinnon and Robb also recognize that under section 301(e) the reviewing district court, as the trier of fact, must independently weigh and evaluate the evidence. Thus, the weight to be given any expert opinion admitted into evidence is exclusively for the judge, and the judge is not bound to accept the opinion of any expert witness or group of expert witnesses. Likewise, we view the hospital'scertification in the instant case as an amalgamation of expert opinion which the trial judge must weigh along with all other evidence in the record before he reaches his conclusion under section 301(e). On the other hand, as Chief Judge Bazelon emphasized in his concurrence in McNeil,

This judicial supervision . . . does not entitle the trial court to substitute its own opinions for uncontradicted expert testimony. Determination of the patient's present mental condition, and of the behavior in which he may be expected to engage if released, must be made on the basis of the expert testimony in the record. Given the facts established by that testimony, including of course, the necessary resolution of any relevant conflicts, the function of the trial court is to determine if these facts measure up to the statutory standards for release.20

We need only add to Judge Bazelon's caveat that the district court's determination can be based on other evidence in the record besides expert testimony, e. g., the patient's hospital file, the court files and records in the case, and whatever illumination is provided by counsel.21

In Dixon v. Jacobs22 this court again refrained from importing the Tribby standard into the procedures governing district court review of conditional release certifications:

Where the challenged decision relates essentially to the internal administration of the hospital as, for example, when a patient seeks to enforce his right to adequate treatment; when he seeks transfer to a less restrictive ward within the hospital; and, perhaps, when he seeks conditional rather than unconditional release we have recognized "the responsibility the law places also upon those in charge of the institution." Covington v. Harris, supra (136 U.S.App.D.C.) at 47, 419 F.2d at 629. (Fahy, J., concurring). In such cases, judicial review is limited to the determination whether the administrator "has made a permissible and reasonable decision in view of the relevant information and within a broad range of discretion." Tribby v. Cameron, 126 U.S.App.D.C. 327, 328, 379 F.2d 104, 105 (1967). The underlying question is to be decided not by the court, but by the hospital; and that decision cannot be meaningfully reviewed until the administrative process has run its course.

When the patient is seeking complete release from confinement, however, the scope of judicial review is broader. In such cases the function of the court is not simply to review the hospital's decision for unreasonableness, but rather itself to decide the ultimate question: whether the present status of the patient is such that continued confinement is justifiable.23

We take it that Judge Bazelon's usage of the word "perhaps" (italicized above) indicates that despite his prior authorship of Hough, Judge Bazelon (1) is refraining from even an expression of dicta on the proper scope of review for the district court in a conditional release proceeding and (2) is not convinced that Tribby supplies the proper standard. More recently, in Ecker I, Judge Bazelon again refused to adopt the Tribby standard in a conditional release proceeding under section 301(e).24

Perhaps it could be argued that the proper scope of district court review in cases involving individuals who have been committed under section 301(d) falls somewhere along a continuum, depending on the degree of public safety at stake. Under this analysis one could argue that district court review of unconditional releases should be broader than district court review of conditional releases since the former pose an even greater risk to public safety than the latter. This may be where our case law stands at the present time. Certainty reigns at each end of the spectrum with Tribby and Covington firmly establishing the scope of review for medical judgments affecting only the internal administration of the hospital and Dixon establishing the standard of review for unconditional releases, i. e., medical judgments significantly affecting the public safety. We see no reason why certainty can not also reign over the realm of conditional release proceedings. Therefore, we will attempt to state concisely what we see to be the district court's role in passing on hospital certifications for conditional release under section 301(e).

It seems clear that the same policy rationale underlies judicial review of conditional and unconditional releases, i. e., providing for the treatment and cure of the mentally ill in a manner which affords reasonable assurance for the public's safety.25 Hence, we agree with Judge Bazelon's reading of legislative intent: The purpose of section 301(e) is to assure that members of appellant's exceptionally dangerous class are "kept under hospital restraint until the District Court, in the exercise of a discretion, reviewable in this Court, approves a relaxation of that restraint."26 To best effectuate this sound legislative purpose behind the judicial review of conditional and unconditional release certifications, we conclude that both types of release proceedings should be governed by the broader standard of review articulated by Chief Judge Bazelon in Dixon.

Thus, in conditional release proceedings (as well as unconditional release proceedings) the role of the district court (i. e., the standard of review)

. . . is not simply to review the hospital's decision for unreasonableness, but rather itself to decide the ultimate question: whether the present status of the patient is such that continued confinement (without conditional release) is justifiable.27

Continued confinement without conditional release is justifiable unless the district court determines under section 301(e)'s statutory standard that the patient will not in the reasonable future endanger himself or others.

To avoid confusion here, it is important to identify two separate, but closely intertwined, "standards" that come into play when a district court reviews a hospital release certification the "statutory standard" and the "standard of review." The proper "statutory standard" was announced in Hough when this court interpreted section 301(e)'s conditional release provisions as a matter of first impression.28 On the other hand, until today's decision the "standard of review" issue had only been discussed in dicta.29 Since our decision in this case necessarily involves both of the aforementioned standards, we will italicize that part of our holding that bears upon the standard of review and leave unitalicized that part involving the statutory standard: In order to approve a conditional release, we hold that the district court must independently "weigh the evidence" and make a de novo determination that the patient will not in the reasonable future endanger himself or others.

We recognize that the statutory standard announced by Judge Bazelon in Hough differs slightly from the statutory standard he later describes in Bolton v. Harris and Dixon.30 To the extent of any conflict, we adopt the Hough standard. Although substantially similar, it is not technically sufficient for the district court merely to find that the patient "is no longer likely to injure himself or other persons because of mental illness."31 Rather, the court must find that the patient "will not in the reasonable future be dangerous to himself or others."32 In other words, we agree with the reservations expressed by Judge Leventhal in his Dixon concurrence:

The Code provides that the court shall release a person acquitted by reason of insanity "if the court finds that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or others." 24 D.C.Code § 301(e). It may well be that in the case of a defendant who presents a substantial problem of danger in the reasonable future, by virtue of his mental condition, the finding in 301(e) cannot be made even though it cannot be said that this danger is "likely." I am not ready to say that this difference from the standard provided for those merely civilly committed . . . is repugnant to fairness or the Constitution.33

Today we answer one of the questions which Judge Leventhal chose to reserve. We hold that the existence of "a substantial problem of danger in the reasonable future" provides an adequate basis for the continued detention and confinement of an insanity acquitee who, like Ecker, has committed a violent criminal act unless the district court can make an "affirmative finding that it is at least more probable than not that he will not be violently dangerous in the future."34

We turn now to the next stage of judicial review the appeal before this court. At our level the standard of review is well settled: The trial court's "(f)indings of fact shall not be set aside unless clearly erroneous."35

As we explained in the preceding section, in order to deny approval of the hospital's certification the district court was not required to, and in fact did not, find that Ecker was "likely" to injure himself or others if his conditional release was approved.36 Instead, upon consideration of appellant's entire hospital file, the written and oral testimony of three psychiatrists and one psychologist, the court files and records in appellant's case, and the arguments of counsel, the district court properly found that it was

unable to conclude that Mr. Ecker ha(d) recovered sufficiently so that under the proposed conditions of release (or any conditions which could reasonably be imposed) he would not in the reasonable future be dangerous to himself or others. This conclusion (was) made with particular reference to his mental illness, its chronic nature, the continuing existence of fantasies in his mind and his uncertain ability to deal with them, the continuing turmoil he is experiencing, and the incidents of his misbehavior in 1974 with respect to female patients at Saint Elizabeths Hospital.37

Judge Smith also made the following important findings of fact:

4. At the present time, Mr. Ecker is still suffering from a chronic mental illness, namely, antisocial personality disorder (with organic features), severe, and sexual deviation (sadism).

5. Mr. Ecker's fantasy life, observed upon his initial commitment at the hospital has continued in virtually the same quality and intensity up to the present time; this is evidenced by psychological tests conducted on him in 1971, 1972 and 1974.

6. In March, 1974, it was brought to the attention of authorities at Saint Elizabeths Hospital that Mr. Ecker was seeking out female patients in the deaf program at the movies and through a window on their ward. Members of the hospital staff express (sic) concern with this behavior, and Mr. Ecker was reprimanded.

7. In April, 1974, Mr. Ecker was reprimanded for improperly touching a female patient on the buttocks.

8. The plan submitted by the hospital for conditional release in the letter to the Court dated August 24, 1973, does not differ in material respects from the plan for release contained in the letter to the Court on December 28, 1972, which was rejected by the Court after a hearing held on January 30, 1973. In particular, both submissions propose that Mr. Ecker be released to attend school and to spend time at his parents' home. The release plan currently before the Court offers no improvements for the defects in the earlier plan since, among other things, it still does not provide adequate controls over Mr. Ecker during the periods he would be away from the hospital.38

Cognizant that this court has frequently remarked on the difficult and complex task facing a district court when it is asked to decide whether a patient at Saint Elizabeths will "in the reasonable future be dangerous to himself or others,"39 we are satisfied that the trial judge's findings here meet the preliminary test, i. e., they "provide a framework adequate for appellate review."40 For the final substantive test, on the record before this court we can not say that Judge Smith's conclusions on the issue of "dangerousness" were clearly erroneous or not based on evidence in the record.41

While Judge Smith disagreed substantially with the opinions of the four expert witnesses who testified that the risk of danger to the community would be minimal if appellant were allowed to participate in the conditional release program, Judge Smith was informed of all the facts on which to base an opinion, and it was his obligation to make an independent determination. As both appellant and the government recognize, the issue of "dangerousness" presents the district court with a difficult mixed question of law and fact, and the court is under no obligation to accept the experts' opinions on questions of law. Chief Judge Bazelon made this indisputably clear in Dixon and McNeil,42 as did Judges MacKinnon and Robb in the court's opinion in McNeil.43

Since we are not weighing the evidence do novo, we deem it unnecessary to repeat all of the details concerning appellant's mental condition which were brought out during the hearing below. Suffice it to say that the situation has changed very little since this court's last opinion in Ecker I. Quoting from Chief Judge Bazelon's remarks in that opinion, we again find that the testimony presented

raises not only ambiguities, but real doubts about the sufficiency of the investigation of Ecker's condition, and the conclusions drawn therefrom that he was ready for a dramatic increase in both responsibility and unsupervised leave time from the hospital.44

One of the factors emphasized by the court in support of the district court's first denial of certification was the inner turmoil still reflected in Ecker's psychological testing,45 and again this turmoil was one of several motivating factors behind Judge Smith's decision below. All the witnesses at appellant's hearing testified that appellant continues to have an active fantasy life,46 and the record indicates that these fantasies are frequently violent, sexual, and aggressive in nature.47 Particularly noteworthy is Dr. Shapiro's characterization of appellant's present relationship with his fantasies:

Personality tests point rather clearly to an active internal struggle in which Mr. Ecker is attempting to come to grips with a fantasy life both gratifying and frightening. . . . When he allows himself the liberty of pursuing his fantasies, his reality testing appears to become somewhat fluid, characterized by primary process ideation; clearly, this entire realm still represents a dangerous and potentially psychically disruptive force. Nevertheless, he is aware of the anxiety stirred up, and has the requisite ego control to set some distance, rather than to act out, in order to deal with the anxiety. His controls at present are characterized by a retreat into vagueness and intellectual verbiage. One response on the Rorschach is perhaps indicative of Mr. Ecker's self-percept: " fragile and velvety, not yet solid or anchored."48

Dr. Shapiro's report is not by any means the only portion of the record justifying the district court's decision. The record is replete with other ambiguities and uncertainties which would give pause to any court considering this patient's release. Even Dr. Saiger, appellant's most outspoken advocate, admitted that the possibility would always remain, though he thought it to be unlikely, that under stressful circumstances Ecker would again react in a violent fashion.49 The factors upon which the district court relied are set forth in the findings of fact and conclusions of law quoted above.

Of considerable importance to the district judge's decision is the undeniable fact that this patient has been thought by the medical experts to be ready for a return to community life before, and that the experts have been proved tragically wrong. The record in this case reveals that appellant's mental illness has been developing and evolving since his early childhood. Previously psychiatric records have indicated that appellant was ready and able to function in society. Yet little more than two years after one such determination and his resulting release from Shepard-Pratt Hospital, appellant committed the rape and murder which led to his current institutionalization. Without recounting every item of evidence supporting Judge Smith's determinations in this case, we conclude that his findings of fact and conclusions of law are amply supported by the record and are not clearly erroneous.

Closely related to the issue of standard of review is the issue of burden of proof at the district court level. Our search of the case law in this jurisdiction has uncovered no cases squarely holding who, if anyone, has the burden of proof in a section 301(e) release proceeding. The only mention of burden of proof in the majority opinion in Hough simply recites the district court's conclusions of law.50 On the other hand, Judge Miller's dissent in Hough indicates that mental patients seeking conditional release may face a heavier burden of proof than those seeking unconditional release.51 Contrary to Judge Miller's suggestion, we find it logical that patients seeking conditional release bear the same burden as patients seeking unconditional release. In the conditional release situation the proposed conditions are theoretically designed to take care of whatever personal inadequacies still handicap the patient and to protect the public. The test in either conditional or unconditional release cases is the same, i. e., whether release will benefit the patient and be safe for the public. However, in patient-initiated release proceedings (e. g., habeas corpus proceedings) the burden of proof requirements are and should be, by the comparative language in the statute and by our decisions, heavier than those applicable to release proceedings initiated by the patient's hospital under section 301(e)'s certification procedure.52

In a footnote in Bolton Judge Bazelon reminds us that this court in Lake v. Cameron "made clear that '(p)roceedings involving the care and treatment of the mentally ill are not strictly adversary proceedings'. . . . Thus technical rules as to who has the burden of bringing relevant evidence to the attention of the court do not apply."53 Our court (Judges Bazelon, Leventhal and Robb) reiterates this position in Dixon, "The District Court and the parties bear an equal responsibility to see that decision is had upon all the relevant evidence."54

We agree with and follow this nonadversary view of the burden of producing evidence55 in "proceedings involving the care and treatment of the mentally ill." Judge Bazelon's concurrence in McNeil also implies a nonadversary view of the burden of going forward into the procedures prescribed for conditional release proceedings. In these proceedings the district court does indeed have "a unique responsibility . . . to see that all the relevant evidence is marshalled towards decision . . . ."56 We, however, go one step further than Judge Bazelon did in McNeil. We hold that in a hospital-initiated, conditional release proceeding there is no assignable burden of proof as we would know it in a criminal or civil case.57 These are truly investigatory proceedings in which traditional notions of proof are simply inapplicable. The district court, the hospital, the patient, and the government share an obligation to elucidate and explore all the relevant facts.58

At the hearing below appellant seemed somewhat confused by the order in which Judge Smith chose to receive the evidence.59 Since this was an investigatory proceeding where all the parties shared approximately equal burdens of proof, the order of going forward was left to the sound discretion of the trial court. In its discretion the district court must choose the order of presentation that seems most likely to marshal and elucidate all the relevant facts. By any standard, the order of presentation followed at the hearing below seems logical and can not be characterized as an abuse of the trial court's discretion. Since the hospital was the proponent of the conditional release proposal, the hospital through the testimony of Dr. Saiger was asked to go forward with the evidence supporting its recommendation. Appellant then was allowed to supplement the hospital's evidence with the oral and written testimony of two private psychiatrists. Next, the government was asked to present evidence and explain to the court why it opposed the hospital's certification. Finally, before Judge Smith took the matter under advisement, Ecker's counsel and the government's counsel were permitted to summarize their arguments. Throughout the hearing, Judge Smith quite properly did not assign to any party the burden of proving Ecker's eligibility (or ineligibility) for conditional release by the preponderance of the evidence. We find no error in the order of presentation or the standard of proof utilized by the district court.

Under section 301(e) all hospital proposals for the conditional release of persons committed to Saint Elizabeths Hospital following acquittal of criminal charges by reason of insanity (hereinafter "acquitees") must receive district court approval. The court "in its discretion may, or upon objection by the United States or the District of Columbia shall, after due notice, hold a hearing at which evidence as to the mental condition of the person so confined may be submitted." If the district court concludes that under the proposed conditions (or under any other conditions which the court may choose to impose) the patient "will not in the reasonable future be dangerous to himself or others," then "the court shall order his release under such conditions."60

In contrast, patients civilly committed to Saint Elizabeths pursuant to 21 D.C.Code §§ 541-45 may be released solely upon a determination by the superintendent of the hospital that "the conditions which justified the involuntary hospitalization of the patient no longer exist," i. e., a determination that the patient is no longer "likely to injure himself or other persons."61 No judicial review is authorized or required under any circumstances.

Relying on Baxstrom v. Herold62 and Jackson v. Indiana63 appellant argues that the release provisions of section 301(e) deny him equal protection of the laws because they differ from the release provisions applicable to involuntarily-committed civil patients (hereinafter "commitees") in two respects, one procedural and one substantive. First procedurally, before an acquitee can be released the district court in which he was tried must approve the hospital's certification that he is ready for conditional or unconditional release; a commitee may be released on the authority of "(t)he chief of service of a public or private hospital."64 Second substantively, in order to approve release the district court must find that under the terms of the release of an acquitee will not endanger himself or others in the reasonably foreseeable future;65 the chief of service of the hospital (i. e., the superintendent) need only find that a commitee is not "likely to injure himself or other persons."66

Since 1958 this court has consistently accepted the proposition that the dangerousness demonstrated by the commission of a crime and acquittal by reason of insanity constitutes a rational basis for the disparity in release provisions governing acquitees and commitees.67 In Bolton v. Harris this court focused on the procedural issue raised here by appellant and expressly upheld section 301(e)'s release procedure for acquitees.68 In order to comply with Baxstrom v. Herold the Bolton court also modified section 301's commitment procedures, holding that procedures substantially similar to those used for other civil commitments must be provided for commitments after acquittal by reason of insanity. In Baxstrom a prisoner whose sentence had almost expired was committed to a state mental institution according to statutory procedures different than those applied to other persons civilly committed. The Supreme Court held the statutes in question violative of equal protection since they allowed the prisoner to be committed beyond the duration of his penal sentence without affording him the judicial review generally available to civil committees.

It is not altogether clear how far this court or the Supreme Court has been willing to extend the equal protection rationale of Baxstrom. For example, Judge Leventhal, concurring separately in Dixon v. Jacobs, hesitated to extend Baxstrom beyond its peculiar fact situation. Quoting from Justice Harlan's opinion in Lynch v. Overholser he declared,

Congress might have thought, however, that having successfully claimed insanity to avoid punishment, the accused should then bear the burden of proving that he is no longer subject to the same mental abnormality which produced his criminal acts. Alternatively, Congress might have considered it appropriate to provide compulsory commitment for those who successfully invoke an insanity defense in order to discourage false pleas of insanity. We need go no further here than to say that such differentiating considerations are pertinent to ascertaining the intended reach of this statutory provision.

I see no reason to conclude that these words penned by Justice Harlan in 1963 were scrapped in 1966 by Baxstrom v. Herold in which he joined. What Baxstrom focused on were (a) procedures for civil commitment (need for jury determination) which were (b) extended on equal protection grounds to one whose prison term was about to expire (in fact did expire prior to the habeas proceeding), and who would thereafter be held on a new commitment.69

Additionally, Jackson v. Indiana does not clearly define what limits, if any, the Supreme Court intends to place on Baxstrom. In Jackson, the defendant, a mentally defective deaf mute, was declared incompetent to stand trial on a charge of robbery and committed to the state department of mental health until he became "sane." Contending that his commitment was tantamount to a life sentence without having been convicted of a crime, Jackson claimed that the Indiana commitment statute deprived him of equal protection. He argued that absent the criminal charges against him, the state would have had to proceed under other civil commitment statutes which would have entitled him to substantially greater rights. Justice Blackmun, writing for a unanimous Court,70 agreed with defendant's contention:

(We) hold that by subjecting Jackson to a more lenient commitment standard and to a more stringent standard of release than those generally applicable to all others not charged with offenses, and by thus condemning him in effect to permanent institutionalization without the showing required for commitment or the opportunity for release afforded by (other civil commitment statutes), Indiana deprived petitioner of equal protection of the laws under the Fourteenth Amendment.71

Thus, the equal protection issue presented in this case comes sharply into focus: whether appellant's commission of criminal acts and the dangerousness to society demonstrated by such acts justify treating appellant differently from a civil commitee for purposes of release.

Previously, this court has concluded that the dangerousness demonstrated by prior criminal conduct does provide a rational basis for some disparities in the statutory provisions governing commitment and release.72 The crucial distinction between Jackson and the present case is that Jackson, although he had a robbery charge pending against him, was not tried and found not guilty by reason of insanity.

Plainly the acquittal by reason of insanity reflects a jury determination, beyond a reasonable doubt, that except for the defense of insanity, defendant did do the act, e. g., kill the deceased, and have the intent that constitutes the substantive crime without any exculpation or mitigation in non-insanity defenses (e. g., self-defense). Lynch v. Overholser, 369 U.S. 705, 714, 82 S. Ct. 1063, (1069), 8 L. Ed. 2d 211, (217) . . . (1962). If a jury is not ready to make that determination it must acquit completely, without going on to consider the insanity defense.73

Thus, appellant's uncontroverted commission of a violent crime clearly sets the instant case apart from Jackson. Moreover, there is no indication in Jackson that the defendant's commitment was an exercise of Indiana's police power or necessary to protect the community.

Appellant argues that this distinction between the degree of dangerousness demonstrated by pending and adjudicated charges is no longer sufficient to justify the slightly stricter release standard and the additional procedural hurdle found in section 301(e).74 Since Baxstrom holds that even proven criminal conduct does not justify different standards and procedures at the commitment stage, and since Jackson applies Baxstrom's rationale to release standards as well as commitment standards, appellant concludes that his prior criminal conduct can not constitute a rational basis for the disparate standards and procedures found in the D.C.Code.

Although superficially sound, there are several flaws in appellant's logic. First, appellant fails to recognize that both Chief Justice Warren in Baxstrom and Justice Blackmun in Jackson tempered their holdings with words of caution. "Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made,"75 i. e., a "reasonable justification."76 Subsection (d) patients are treated differently from civil commitees because they are "an exceptional class of people"77 who have "already unhappily manifested the reality of anti-social conduct."78 Congress has determined that these individuals pose a significant risk to the community and that the public is entitled to the additional protection afforded by judicial supervision. In order to insure that society's interests are properly weighed when a release proposal is considered, section 301(e) requires the district court to make its own independent determination whether the patient will endanger himself or others in the reasonable future. Clearly, the D.C.Code's substantive and procedural distinctions between acquitees and commitees have a great deal of "relevance to the purpose for which the classification(s) (were) made."79

Second, appellant attempts to equate "standards" with "procedures." In Jackson the Court found a denial of equal protection in the fact that the release standards applicable to Jackson differed from those generally applicable to civil committees. Since Jackson did not involve differences in procedure it can hardly be dispositive of the procedural question facing this court: whether the additional requirement of district court approval denies equal protection to patients such as Ecker.80 While we realize that substantive rights can be rendered nugatory if procedural rights are ignored, we do not understand how independent judicial review deprives a patient of any substantive right. Moreover, that review is designed for the protection of the public against whom the acquitee has already been shown to have committed one or more criminal acts, thus differentiating himself from the civil commitee.

Finally, and most importantly, appellant asks this court to overrule its decision in Bolton and extend the Baxstrom-Jackson equal protection doctrine to a situation where it has never yet been applied by a federal court. Baxstrom involved commitment procedures at the end of a prisoner's sentence term, and in Humphrey v. Cady81 the Supreme Court clearly indicated that Baxstrom fully applies to acquitees who have been confined for a period equal to the maximum sentence authorized for their crimes.82 So far, however, no federal cases have held that during their maximum sentence period acquitees are entitled to the same release standards and procedures provided for civil commitees.83 This is the extension of the Baxstrom-Jackson equal protection doctrine which appellant urges this court to adopt. We choose instead to adhere to Judge McGowan's 1973 interpretation of Baxstrom, Jackson, and Humphrey:

. . . Jackson expressly holds that Baxstrom is applicable to the problem of release from indefinite confinement . . . . Read together, then Humphrey and Jackson indicate that, once the maximum sentence period has expired, it is unconstitutional to discriminate against an acquitee, as compared with a committee, for purposes of release from indefinite commitment. From that moment on, acquitees and commitees appear, in the Court's contemplation, to be on the same footing.84

Similarly, in Humphrey, Justice Marshall recognizes the limited scope of Baxstrom's applicability when he concedes that a criminal conviction may justify some differences in procedural safeguards if the differences are "limited by the nature of the defendant's crime or the maximum sentence authorized for that crime."85

Ecker has been institutionalized for over seven years, but absent his acquittal by reason of insanity he could have been incarcerated for life. We believe that prior criminal conduct, especially violent conduct such as that involved in this case, provides a "reasonable justification"86 (i. e., a rational basis) for the differences in release procedures found in the D.C.Code.

We unhesitatingly agree with appellant's contention that he has a right to treatment under the least restrictive conditions possible.87 We disagree, however, with his assertion that this right to treatment entitles him to the unsupervised access to the community that would be permitted under the hospital's conditional release plan. Dr. Saiger and the hospital suggest that a step-by-step reentry into the community is essential to Ecker's continued improvement. Be this as it may, since Judge Bazelon's decision in Hough, it has been settled that section 301(e) precludes Saint Elizabeths from prescribing community access for its patients unless such access receives district court approval.88 When a patient who has committed violent criminal acts is released from the hospital, either conditionally or unconditionally, the safety interests of the community must be considered. Congress saw fit to protect these interests through the judicial review procedure of section 301(e), and in the instant case Judge Smith pursuant to that procedure determined that the potential for harm outweighed appellant's right to this particular mode of treatment. We find no error in Judge Smith's application of the well-settled precedents of this court there is no right to treatment at the community's peril.

It is not within our province to weigh the evidence in this case and make a third independent determination on the question of dangerousness the first two determinations being those of the hospital and the district court. Therefore, since the record before us reflects no errors in law, no findings of fact which are clearly erroneous or not supported by the record, and no abuses of discretion, we affirm the order of the district court denying the hospital's recommendation for conditional release.89

Affirmed.

Following a non-jury trial before Judge John Lewis Smith, Jr., upon stipulated facts in May 1968, Lewis Ecker was acquitted by reason of insanity of the rape and murder of a senatorial aide. Ever since, he has been confined to Saint Elizabeth's Hospital. The superintendent of that institution has now recommended, for the second time, that Ecker be conditionally released for a few hours each day to participate in a vocational training program. On December 27, 1974, Judge Smith rejected that petition, a decision which the majority today upholds. I concur.

The plain language of § 301(e) requires the district court to focus on the question of whether the patient whose release is proposed "will . . . in the reasonable future be dangerous to himself or others." There can be no doubt that Judge Smith was well justified in concluding that Ecker's release posed an unacceptable risk to the safety of the community. It is undisputed that, at the time of the instant petition, appellant continued to suffer from "chronic mental illness, namely anti-social personality disorder (with organic features), . . . and sexual deviation (sadism)" as well as experiencing an active fantasy life. Ecker seeks to minimize the severity of his condition by stressing that each of the experts who testified below advocated his conditional release. While deference is of course due the opinions of trained psychiatrists and psychologists, it is and must remain the responsibility of the court to weigh the patient's individual therapeutic needs against the possibility of danger to society at large. See Dixon v. Jacobs, 138 U.S.App.D.C. 319, 322, 427 F.2d 589, 595 at n. 17 (1970). Judge Smith properly balanced those considerations in this case.

Indeed, the propriety of the district court's ruling is so apparent from the record that I do not believe it is necessary to reach out and decide the novel question of where the burden of proof should lie in § 301(e) hearings. No matter on whom the burden is placed, Judge Smith's decision that the confinement of Lewis Ecker be continued is supported by the evidence. Judge Wilkey nevertheless holds that in such proceedings, "there is no assignable burden of proof as we would know it in a criminal or civil case."

I am constrained to disagree. The unfortunate but inescapable fact is that Ecker's mental illness has already manifested itself in the commission of a violent and anti-social act. Under these circumstances, I would require the Hospital to show by a preponderance of the evidence that his release under the conditions herein proposed would not in the reasonable future endanger the lives and well-being of those with whom Ecker may come into contact. Such an allocation would be consistent with the standard employed in evaluating patient initiated habeas corpus petitions under § 301(g). See Bolton v. Harris, 395 F.2d 642, 653 (D.C.Cir.1968).

Ecker's past conduct similarly justifies the requirement that those committed after a finding of not guilty by reason of insanity obtain judicial approval prior to their conditional or unconditional release although no such additional procedural hurdle is placed in the path of those civilly committed. An equivalent equal protection attack upon this disparity was dismissed by this Circuit in Bolton v. Harris, supra at 652. Nothing has transpired in the intervening years which would require us now to reconsider that decision. I am in complete accord with Judge Wilkey's conclusion that Baxstrom v. Herold, 383 U.S. 107, 86 S. Ct. 760, 15 L. Ed. 2d 620 (1966) and Jackson v. Indiana, 406 U.S. 715, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972), do not control the instant situation.

I would affirm the order of the district court denying appellant's request for conditional release.

J. SKELLY WRIGHT, Circuit Judge (dissenting):

In 1967 Lewis Ecker, suffering from mental illness, brutally raped and murdered a young woman. He was tried and found not guilty by reason of insanity. After a Bolton hearing1 he was committed to St. Elizabeth's Hospital. Although his illness was serious and his condition chronic, he has improved significantly during the course of his years at the hospital. Tr. 22, 123, 137-138, 150, 172, 197-198. This is reflected both in IQ tests (his IQ rose 15-25 points by 1972) and in other psychological tests administered most recently in June 1974. They show continued inner turmoil and fantasies, but they demonstrate an improved ability to deal with problems. These tests also indicate that Ecker now regards his fantasies as "quite ego-alien," Tr. 23-27, App. 61, that he can step aside and deal with them at a distance, Tr. 203, avoiding the necessity of "acting out," App. 63, and that he now has a better sense of the "time spectrum," appreciating "that there is not immediate relief to any sense of tension." Tr. 113; see also Tr. 83-84. And since 1972 he has been virtually without medication. Tr. 13; contrast United States v. Ecker (Ecker I ), 156 U.S.App.D.C. 223, 225, 227, 479 F.2d 1206, 1208, 1210 (1973).

Ecker has, as well, taken an active volunteer role in the life of the hospital community, showing movies to elderly patients and participating in editing and publishing a hospital newsletter. Tr. 10, 17-18, 97. He has had grounds privileges (unsupervised access to the hospital grounds) since 1971. Tr. 11, 173. Perhaps most important, he has participated in vocational therapy, first with the Behavioral Studies Division and then in the Sheltered Workshop at the hospital. Tr. 14-17. He has shown interest in and aptitude for electronics work, and he has been given some supervisory responsibilities at the Sheltered Workshop. Tr. 15-17. He has, in fact, advanced through substantially all of the training opportunities open to him at the hospital; the logical next step of his treatment is electronics training at a vocational training institution outside the hospital grounds. Tr. 56.

In order to permit him to take this next step the hospital, after review, certified Ecker for conditional release under 24 D.C.Code § 301(e) (1973),2 thereby indicating that, in the hospital's judgment, Ecker would not be "dangerous to himself or others" under the proposed conditions. He was to be released from the hospital only for sufficient time to travel to and from the school and attend classes; he would always spend the night and evening at the hospital. If his progress was satisfactory he could have further time for library and lab work. Finally he might gain permission to spend certain weekends or holidays with his family. All these measures were seen as the logical next steps in his treatment.

The Government does not challenge the hospital's right to seek conditional release for purposes of treatment. Indeed it could not; treatment must be regarded as the most compelling reason for conditional release of a patient not completely recovered. See generally Ashe v. Robinson, 146 U.S.App.D.C. 220, 222, 450 F.2d 681, 683 (1971); Covington v. Harris, 136 U.S.App.D.C. 35, 43, 419 F.2d 617, 625 (1969); Tribby v. Cameron, 126 U.S.App.D.C. 327, 328, 379 F.2d 104, 105 (1967); Rouse v. Cameron, 125 U.S.App.D.C. 366, 373 F.2d 451 (1966); Hough v. United States, 106 U.S.App.D.C. 192, 196, 271 F.2d 458, 462 (1959) ("temporary freedom is often an essential part of the therapeutic process"); 21 D.C.Code § 562 (1973). The Government does assert, though, that Mr. Ecker's situation does not meet the "dangerousness" standard for conditional release under Section 301(e). And it asserts at the threshold that, contrary to Ecker's argument, the Government does not bear the burden of proof on the dangerousness issue when it opposes release, despite the hospital's certification.3

* On the burden of proof question the statute is hardly a model of clarity.4 I agree with Judge Lumbard that on this record we need not decide this dispute. We should, moreover, be especially cautious in finally deciding the question in view of the difficulty of the issue. Judge Wilkey, for example, says in Part IV of his opinion that in conditional release proceedings "there is no assignable burden of proof as we would know it in a criminal or civil case." Yet in Part II of his opinion he seems clearly to place the burden of persuasion on the patient or perhaps the hospital.5 Judge Lumbard, although agreeing that the question need not be reached, offers his view that the burden is on the hospital. But this puts the United States Attorney's office in the anomalous position (unless the patient hires counsel to represent the hospital-patient position) of potentially being called upon to represent both sides choosing on its own to oppose the release, but being called upon to serve as lawyer for the government hospital.6 In any event, hospital certification amounts to significant support for the patient in his effort to secure conditional release; it must mean that the hurdles are not as high as if he sought conditional release on his own motion. This is particularly true where, as here, the conditional release is for treatment.

I dissent from the judgment affirming the District Court because that court's opinion does not rest upon findings adequate to support the outcome reached or to provide for meaningful judicial review. United States v. McNeil, 140 U.S.App.D.C. 228, 229, 434 F.2d 502, 503 (1970) (per curiam);7 cf. Millard v. Cameron, 125 U.S.App.D.C. 383, 386, 373 F.2d 468, 471 (1966), reversed after remand, sub nom. Millard v. Harris, 132 U.S.App.D.C. 146, 406 F.2d 964 (1968); Whittaker v. Overholser, 112 U.S.App.D.C. 66, 68, 299 F.2d 447, 449 (1962).

The most glaring deficiency lies in the District Court's failure to indicate what other conditions for release were considered and obviously rejected. Both the statute and our cases make clear that if the court is dissatisfied with the conditions suggested by the hospital if, that is, it feels the danger is too high under those conditions then it is the court's duty to consider and impose such other conditions as will make conditional release acceptably safe. United States v. McNeil, supra, 140 U.S.App.D.C. at 239, 434 F.2d at 513 (Bazelon, C. J., concurring); Dixon v. Jacobs, 138 U.S.App.D.C. 319, 325, 427 F.2d 589, 595 (1970); Hough v. United States, supra, 106 U.S.App.D.C. at 195, 271 F.2d at 461; cf. Lake v. Cameron, 124 U.S.App.D.C. 264, 268, 364 F.2d 657, 661 (1966) (en banc). The record indicates the District Court's probably justified displeasure with the laxity of some hospital-proposed conditions. Tr. 210, memorandum op. P 8. But more narrow and still reasonable conditions which would remedy at least some of the problems quickly come to mind.8 Yet the District Court has given us no indication of other conditions considered or of the reasons for rejecting them. The only mention of other possible conditions comes in the concluding paragraph of the memorandum opinion: Mr. Ecker's release would not be safe "under the proposed conditions of release (or any conditions which could reasonably be imposed) * * *." Memorandum op. P 9. This conclusory statement is inadequate. I would remand for reconsideration and for a more careful articulation, on the record, of alternative conditions considered and the reasons for rejecting them.

The District Court's findings are inadequate in another important respect. There is a certain momentum in cases of this sort, it seems to me, pulling strongly toward reading the conditional release provisions out of the statute. The initial episode which sent Ecker to St. Elizabeth's was so brutal that there is a tendency to seek proof of complete recovery and assurance of safety under any conceivable conditions before granting even a limited release. If courts yield to this entirely understandable urge, then patients like Ecker will be entitled either to unconditional release or to no release at all.

Congress cannot have been unaware of these concerns. Yet in Section 301(e) Congress has explicitly chosen to permit, in appropriate circumstances, conditional release of patients not completely recovered. And the only patients who come under Section 301(e) are those who were initially hospitalized after committing a criminal act. Courts must take care to honor the congressional judgment. Congress has provided, I emphasize, that a person committed following an insanity acquittal may be entitled to conditional release without proving that he has recovered completely, without proving that, unmonitored, he would never be dangerous, and certainly without proving that medical authorities have always been 100 percent accurate in past judgments of his condition.9

The question for the court in this case is whether "the individual has recovered sufficiently so that under the proposed conditions or under conditions which the statute empowers the court to impose 'as (it) shall see fit,' 'such person will not in the reasonable future be dangerous to himself or others.' " Hough v. United States, supra, 106 U.S.App.D.C. at 195, 271 F.2d at 461 (footnote omitted). And the court is of course concerned not with finding the mere possibility of danger but with assessing its likelihood. See Dixon v. Jacobs, supra, 138 U.S.App.D.C. at 325 n.17, 427 F.2d at 595 n.17; Millard v. Harris, 132 U.S.App.D.C. 146, 159, 406 F.2d 964, 977 (1968).10

The District Court's findings here are inadequate for us to determine whether this was in fact the question it asked and answered. The only truly useful explanation of the court's decision comes in the following passage from Paragraph 9 of the memorandum opinion:

This conclusion (that conditional release should be denied) is made with particular reference to (Ecker's) mental illness, its chronic nature, the continuing existence of fantasies in his mind and his uncertain ability to deal with them, the continuing turmoil he is experiencing, and the incidents of his misbehavior in 1974 with respect to female patients at Saint Elizabeths Hospital.11

Most of these factors show only that Ecker remains mentally ill a fact not contested. His illness is undeniably chronic, and he does experience fantasies and turmoil. None of this necessarily bars him from conditional release. Apart from the two incidents of "misbehavior," which are exceedingly minor in nature, the only listed factor with any real bearing on dangerousness is Ecker's "uncertain ability to deal" with his fantasies. I agree that we cannot be certain about his ability to deal with them. But the real question is whether that uncertainty is so great that Ecker must be considered "dangerous" within the meaning of the statute if granted a limited conditional release.12 The District Court must do more to explain why it answered yes to that question, particularly in the face of the hospital's certification and a record suggesting the contrary. All four doctors who testified, including the one called by the Government, concurred in the hospital's recommendation for conditional release and the judgment that Ecker would not be dangerous under the proposed conditions. Tr. 19, 123, 163, 171, 205. There is in the record, moreover, an impressive range of evidence indicating that the vocational therapy to be provided under the proposed conditional release would yield continued improvement in Ecker's condition because it would provide the needed next step in his treatment. If his condition were to deteriorate and the witnesses thought this unlikely because of his improved "controls" the deterioration would come slowly. With Ecker returning to the hospital each afternoon after class, there would be numerous "points of intervention" where the hospital could take note of the developments and initiate appropriate action.13 Tr. 19, 54-60, 83-84, 113, 118, 123, 128, 137-140, 150, 173, 197, 203-205.

I do not suggest that the District Court was bound to accept all of this testimony.14 It may in fact be that Ecker is too dangerous for limited release under any reasonable conditions. But if so, this court, and Ecker, and indeed the public (for the public has an important interest in the liberty of fellow citizens and in treatment to restore their health, along with its obvious interest in safety), are entitled to a more complete statement indicating why the likelihood of danger was adjudged sufficiently great to bar conditional release.

Nothing in the court's holding today would prevent the District Court from supplying a more complete statement if Ecker should apply again at a later date for conditional release. And, of course, nothing in today's holding precludes a District Court from ordering conditional release later should it determine at that time that the statutory tests are met.15

I respectfully dissent.

On Suggestion for Rehearing En Banc.

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges.

PER CURIAM.

The suggestion of appellant Lewis C. Ecker, II for rehearing en banc having been transmitted to the full court and there not being a majority of the judges in regular active service in favor of having this case reheard en banc, it is

ORDERED by the court en banc that the aforesaid suggestion for rehearing en banc is denied.

Statement of Circuit Judge LEVENTHAL Concerning His Vote To Deny Rehearing En Banc

While the suggestion for rehearing en banc raises some interesting questions, I would find it difficult to consider them because in my view the issues have not been sufficiently focused by the record.

What I think is a more central difficulty is the problem, glimpsed in part III of Judge Wright's dissenting opinion, but not focused in a claim of error, that the trial judge has in this case disagreed with the conclusions of the only experts who gave testimony without indicating why.

This is a proceeding seeking release (or conditional release) of a person detained following a verdict that he is guilty of a serious crime but for mental illness. The trial judge has the responsibility, and he may decline relief even though all the testifying experts recommend release. But he must indicate why he comes to a different conclusion. As Judge Tamm said in another connection, the requirement of a statement of reasons "more than a simple conclusion" "is not onerous if the matter was dealt with in a conscientious manner in passing on the merits." Davis v. Clark, 131 U.S.App.D.C. 379, 380-81, 404 F.2d 1356, 1357-58 (1968).

Although this case is structured as a habeas corpus hearing with expert testimony, what is also involved is a decision by a unique agency a hospital (here, St. Elizabeth's Hospital) holding someone detained under court order. The predicate of a hearing is that the hospital superintendent has issued a certificate, for filing with the clerk of the court, of his opinion that the person confined is entitled to release. 24 D.C. Code § 301(e). This is not a situation where the court must defer to the agency, if it is supported by substantial evidence. The hearing is before the court, the court has authority and responsibility to make the decision, and the hospital agency is only advisory. But if the machinery of government is to make sense the agency must be informed of why it is that the advice of its staff and officials has been rejected.

The forecasting of dangerousness is itself dangerous, and difficult, but the dangers and difficulties will only be increased unless the approach of the court is indicated, so that the experts of the hospital agency can adhere to that approach, or so that they can better present the situation when it is reviewed a year hence, if they believe that the judge's approach reflects a misunderstanding of their views or the underlying situation.*

Statement of Circuit Judge J. SKELLY WRIGHT, in Which Chief Judge BAZELON and Circuit Judge SPOTTSWOOD W. ROBINSON, III, Join, of Reasons for Voting for Rehearing En Banc.

Appellant Ecker was committed to St. Elizabeth's Hospital in 1968 after being acquitted by reason of insanity of the murder of a young woman. 24 D.C. Code § 301(d) (1973). In 1974 the hospital certified Ecker for conditional release under id. § 301(e) (1973) so that he could attend a vocational training school by day, returning to the hospital each night. Such training was seen as an essential step in Ecker's treatment program, since he had basically exhausted all the training opportunities available at the hospital. Testimony at the hearing firmly supported the conclusion that limited release of this kind is needed for Ecker's continued improvement. It also provided a strong showing that, as the hospital determined, Ecker is not likely to be dangerous to himself or others on conditional release. Nonetheless the District Court rejected the hospital's determination and denied release. A panel of this court affirmed.

Our cases have consistently underscored the importance of honoring a patient's right to treatment. See, e. g., Ashe v. Robinson, 146 U.S.App.D.C. 220, 222, 450 F.2d 681, 683 (1971); Covington v. Harris, 136 U.S.App.D.C. 35, 41, 419 F.2d 617, 623 (1969); Tribby v. Cameron, 126 U.S.App.D.C. 327, 328, 379 F.2d 104, 105 (1967); Rouse v. Cameron, 125 U.S.App.D.C. 366, 373 F.2d 451 (1966). Where there is a strong showing that conditional release is needed for treatment purposes, it is especially incumbent upon the District Court to make a careful, detailed, and explicit statement of its findings and reasons for denying release, both to assure that the need for treatment is properly respected and, more importantly, to aid the hospital in planning its future course. The hospital ought to know where to concentrate its future efforts so that, barring deterioration in Ecker's condition, it may some day devise an acceptable release proposal.

The conclusory findings presented by the District Court in this case give the hospital no real guidance. This failure to give adequate reasons in the face of the hospital's certificate recommending conditional release is a significant departure from the statutory scheme, which places initial responsibility for this judgment on the hospital. The statute indicates that hospital and court should work cooperatively in carrying out its purpose.

For this reason, and for the other reasons stated in my dissent from the panel opinion, I vote for rehearing en banc.