to the negative position. This is a very unfortunate situation because the rights of a defendant to be acquitted on the ground of insanity would, under these circumstances, depend on the psychiatrist who happens to testify.
It so happens that several years ago Saint Elizabeths Hospital almost overnight announced a change of position, stating that while previously members of its staff had classified sociopathic personalities as not being mentally diseased, they were reversing their position and would thereafter classify them as being mentally diseased. It may be said in passing that this is one of the matters that created a complication in the application of the Durham rule ( Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d 1430), which had been enunciated by the Court of Appeals prior to this change of position on the part of Saint Elizabeths Hospital.
It is interesting to note that the American Law Institute in its Model Penal Code proposed a provision expressly indicating that a person known as a sociopathic personality should not be regarded as mentally ill for the purpose of an acquittal on the ground of insanity. This is found in Article 4, Section 4.01, subsection 2, of the Model Penal Code.
The Court at this stage of the proceeding was not entirely satisfied one way or the other and on its own initiative requested an examination and advisory opinion by the Commission on Mental Health. This Commission composed of two psychiatrists and a lawyer Chairman, filed a report, the pertinent portions of which read as follows:
'It is our opinion, after examining Mr. Stanley V. Robertson, that he is no longer suffering from any mental disease or defect that would render him dangerous to himself or others at this time or within the foreseeable future. It is our opinion that his diagnosis is anti-social reaction with a history of psychotic reaction, from which he is now recovered.'
One of the two physician members of the Commission, Dr. Keeney, was called as a witness by the Government. He explained this opinion by stating that it may be that the petitioner may have suffered from an anti-social reaction with psychotic reaction, but that he is not now so suffering and that he is at this time a normal individual. Dr. Keeney also testified in response to a question that the mere fact that a person is a sociopathic personality is not in and of itself sufficient to justify a commitment to a mental institution in a civil proceeding. Thus we have a rather anomalous situation of a sociopath not being subject to commitment civilly and yet being able to secure his acquittal on the ground of insanity if prosecuted on a criminal charge. It also must be borne in mind that a sociopathic personality is generally not regarded as curable and a person in that position might find himself imprisoned for life in a mental institution. Surely we cannot use commitments to mental institutions to serve in the place of habitual criminal laws, which we do not have in this jurisdiction, but which are found in some of the States.
To summarize, there is not a scintilla of evidence that the petitioner is at this time suffering from a mental disease or defect or exhibiting any abnormal symptoms. He has shown by the manner in which he managed to get along during the seven months when he was at liberty, that he is able to take care of himself without getting into serious trouble. Even though he might possibly commit other crimes, this circumstance in itself is no reason to confine him in a mental institution if he has no symptoms of a mental disease. The two physician members of the Commission on Mental Health are unequivocal in their report. Dr. Dabney and Dr. Lanham, to be sure, prognosticate that, if released, his symptoms might recur, but that is a very dangerous basis on which to deprive a person of his liberty, the most precious right that is accorded to an individual.
Accordingly, the Court finds as a fact that the petitioner has recovered his sanity and is not likely in the reasonably foreseeable future to be dangerous to himself or others by reason of any mental disease or mental defect, because he has none. The Court further finds that the refusal of the Superintendent of Saint Elizabeths Hospital to make a certificate on the basis of which the petitioner may be released is arbitrary and capricious, using those terms in their technical legal sense, because the Court wishes to say that it has no doubt as to the good faith and the competency of the staff of Saint Elizabeths Hospital. These findings are supported by a preponderance of the evidence.
Accordingly, the petitioner is entitled to his release and the writ will be sustained.
We now reach the question as to what form the final order of this Court should take. The statute governing writs of habeas corpus, 28 U.S.C. §§ 2243, provides that:
'The Court shall summarily hear and determine the facts and dispose of the matter as law and justice require.'
In other words, the Court has wide discretion as to the final disposition of the case. The Court is of the opinion that it has authority under that statute to grant either an unconditional or conditional release. The situation is entirely different from that presented when an unconditional release is recommended by the hospital. In a habeas corpus proceeding the authority of the Court is broad as to the nature of the relief.
Accordingly, the Court will grant a conditional release, and after the petitioner has successfully been on conditional release for a reasonable period of time, an application may be made to enlarge it to an unconditional release.
As to the terms of the release, the Court will hear counsel in connection with the framing of the order. Government counsel may wish to consult with one of the two senior physicians of John Howard Pavilion of Saint Elizabeths Hospital as to the conditions to be imposed.
A transcript of this oral decision will constitute the findings of fact and conclusions of law.