D. BROCK HORNBY, District Judge.
The federal criminal code provides a procedure for civil commitment of a defendant
(1) the defendant's "sentence is about to expire";
(2) the defendant has been found incompetent to stand trial and has been committed to the Attorney General's custody for hospitalization to determine whether he will regain competency or for treatment to restore competency (18 U.S.C. § 4241(d) procedure); or
(3) "all criminal charges have been dismissed [against him] solely for reasons related to [his] mental condition."
18 U.S.C. § 4246(a).
In this prosecution, I previously found the defendant Alvin C. Hardy incompetent to stand trial in this district and committed him to the custody of the Attorney General for hospitalization under § 4241(d). He was assigned to the Federal Medical Center in Butner, North Carolina ("FMC Butner") for treatment. After a time, FMC Butner reported that he had regained competency and filed a certificate to that effect under § 4241(e). At the subsequent competency hearing, I found that Hardy still was incompetent (he had fallen off the medications prescribed at FMC Butner) and later granted a joint motion to return Hardy to FMC Butner
At this point, the government asks me to send Hardy back to a prison hospital (FMC Butner) yet again, to request an evaluation of dangerousness under § 4246, the first step in the civil commitment procedure. Mot. to Evaluate for Dangerousness (Docket Item 76). The government agrees that the first of the three qualifying conditions for such an evaluation (a sentence about to expire) does not apply, but argues that both of the other conditions do apply. Id. at 5. Specifically, it contends that because I previously committed Hardy under § 4241(d), the second condition is satisfied. Id. at 7. Alternatively, it states that the third condition is satisfied because it is considering dismissing the criminal charges against Hardy due to his mental condition, but wants first to know whether that is likely to result in release or civil commitment for dangerousness. Id. at 6; Reply in Support of Mot. to Evaluate at 5 (Docket Item 80).
The defendant objects, arguing that I have no authority to send him back to FMC Butner for a further evaluation now that I have found him competent and he is ready to stand trial. Resp. in Opp'n to Mot. to Evaluate for Dangerousness at 9 (Docket Item 78).
I held oral argument on March 11, 2011, with the defendant present.
I conclude that I do not have authority to order Hardy back to FMC Butner for a dangerousness evaluation under the second condition. The government's reading—that the phrase "has been committed" includes those who have ever previously been committed—is not a reasonable reading of the statute. It would mean that once a defendant was found incompetent to stand trial and committed for treatment, forever after he would be subject to re-hospitalization at any time for a dangerousness evaluation. I see no reason to read the statute so broadly, although I recognize that the government has language from one case to support its argument.
The question of my authority under the third condition is more difficult. On the one hand, the criminal charges against Hardy definitely have not been dismissed; they are still pending, and there is no government undertaking of any sort to dismiss them. The fact that the government is considering dismissing the charges does not satisfy the clear wording of the statute. On the other hand, the government argues that it is inconsistent with the thrust of the statute (designed to protect the public from a defendant who is dangerous on account of mental disease or defect) to require dismissal of the charges before the certificate of dangerousness can issue because, once the charges are dismissed, the court has no more authority over the defendant and cannot then send the defendant to a Bureau of Prisons ("BOP") medical facility for evaluation. Language from a decision in the Fourth Circuit Court of Appeals provides some support for the government's position.
I conclude that under § 4246, a prosecutor's statement that, for reasons related solely to the defendant's mental condition, he is "considering" dismissing charges is not alone enough to give a district judge the authority to order a defendant to a BOP hospital facility for a dangerousness evaluation in the circumstances before me now, where I have found the defendant competent and he is otherwise on track for trial. The government has an alternative. It can move to dismiss the charges without prejudice, renew its motion for a dangerousness evaluation, and ask me, if I grant the dismissal, to stay the order once it is entered, pending the dangerousness evaluation. That precise procedure was used in Godinez-Ortiz, and approved. United States v. Godinez-Ortiz, 563 F.3d 1022, 1026, 1031-32 (9th Cir.2009). It respects both the statutory language ("all criminal charges have been dismissed") and the centrality of the medical facility director's (the warden's) dangerousness evaluation under the statute and its legislative history;
Accordingly, the government's motion is
S.REP. No. 98-225, at 251 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3433. See generally United States v. Baker, 807 F.2d 1315, 1320-24 (6th Cir.1986).