Appeal from the Superior Court of the District of Columbia; (Hon. Shellie F. Bowers, Trial Judge)
Before Schwelb and Farrell, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: Farrell
FARRELL, Associate Judge: Appellant brings this interlocutory appeal from an order of the trial court directing his commitment to Saint Elizabeths Hospital pursuant to D.C. Code § 24-301 (a) (1989) for a 60-day evaluation to assist the court in determining whether there is a substantial probability that appellant will become competent to stand trial. See Jackson v. Indiana, 406 U.S. 715, 32 L. Ed. 2d 435, 92 S. Ct. 1845 (1972). The government has moved to dismiss the appeal for lack of a final order, contending it does not come within the exception to the final order rule enunciated in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949). See, e.g., Stein v. United States, 532 A.2d 641, 643 (D.C. 1987), cert. denied, 485 U.S. 1010, 99 L. Ed. 2d 705, 108 S. Ct. 1477 (1988). Although the issue of appealability is not free of doubt, we deny the motion to dismiss and hold the order to be appealable under Cohen. See United States v. Weissberger, 292 U.S. App. D.C. 412, 415-16, 951 F.2d 392, 395-97 (1991); United States v. Donofrio, 896 F.2d 1301, 1303 (11th Cir.), cert. denied, 497 U.S. 1005, 111 L. Ed. 2d 752, 110 S. Ct. 3241 (1990); United States v. Gold, 790 F.2d 235, 237-39 (2d Cir. 1986).
On the merits, we affirm the order of commitment. On September 2, 1992, Judge Bowers found appellant incompetent to stand trial, a finding which neither the government nor appellant disputed. Upon such a finding, D.C. Code § 24-301 (a) provides that "the court shall order the accused confined to a hospital for the mentally ill" (emphasis added). The commitment, by its terms, is mandatory; the trial court has no discretion not to order it. *fn1 Cf., for example, Donofrio, 896 F.2d at 1302 (holding similar language in federal Insanity Defense Reform Act of 1984 to be mandatory). However, the commitment is not indeterminate; constitutionally, under Jackson v. Indiana, supra, "a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future." Jackson, 406 U.S. at 738. Judge Bowers set a limit of sixty days for appellant's commitment.
Appellant contends that, if read according to its mandatory terms (as limited by Jackson), § 24-301 (a) violates constitutional due process by "requiring commitment of a defendant on the basis solely of a finding that the defendant is incompetent to stand trial." This argument cannot be reconciled with Jackson itself, which presupposed the constitutionality of temporally limited commitment, though mandatory, *fn2 of "a person charged . . . with a criminal offense who is committed solely on account of his incapacity to proceed to trial," 406 U.S. at 738; 406 U.S. at 725 ("Were the state's factual premise that Jackson's commitment is only temporary a valid one, this might well be a different case"). As we recognized in Thomas v. United States, 418 A.2d 122, 126 (D.C. 1980), the Supreme Court's concern in Jackson was with the constitutionality of "an indefinite commitment on the ground of incompetency alone." 406 U.S. at 733 (emphasis added). By contrast, the Court impliedly approved lower federal court decisions which sustained the constitutionality of the then-federal commitment statute by construing it so that, "without a finding of dangerousness, one committed thereunder can be held only for a 'reasonable period of time' necessary to determine whether there is a substantial chance of his attaining the capacity to stand trial in the foreseeable future." Id. See also United States v. Shawar, 865 F.2d 856, 863-64 (7th Cir. 1989) (upholding, in light of Jackson, mandatory commitment procedure of Insanity Defense Reform Act of 1984 against due process attack); United States v. Donofrio, 896 F.2d at 1303 (same).
Appellant's reliance on more recent Supreme Court decisions, particularly Riggins v. Nevada, 118 L. Ed. 2d 479, 112 S. Ct. 1810 (1992), as requiring an individual "least restrictive alternative" determination before commitment can be ordered consistent with Jackson, is misguided. Section 24-301 (a) reflects the legislative judgment that, for the abbreviated length of time Jackson permits, the hospital environment is the least restrictive setting in which the intensely medical judgment and recommendation to the court can be reached as to the likelihood of the accused's regaining competency. The Supreme Court's concern in Riggins with forced medication of a defendant with antipsychotic drugs, and the resulting possible impairment of his "constitutionally protected trial rights," 112 S. Ct. at 1816, casts no doubt on Congress' determination that temporary in-patient evaluation is essential before a finding can be made that the accused may not be brought to trial at all. *fn3
Appellant further argues that § 24-301 (a) is unconstitutional "on the facts of this case" in the absence of "further findings on the necessity for or appropriateness of any contemplated commitment." Assuming such findings were required at all, Judge Bowers' findings were entirely adequate for constitutional purposes. He correctly understood the gravamen of appellant's argument to be that he was mentally retarded, not mentally ill, hence that he was "not ever going to be competent." But, recognizing that "a court setting cannot substitute for the hospital setting for prolonged observations," the Judge disagreed that the evidence before him demonstrated that appellant's commitment for the brief period of evaluation would be futile:
This man is not that deficient mentally with his level of deficiency which is not very, very deficient. He is sort of borderline and borderline mentally deficient may be low/average intelligence. Maybe that depends on how you interpret it. So, some expert may not even consider him -- He may not even be -- I don't know. He just may not even be civilly committable as a mentally deficient person under the mental retardation statute or anything of that sort.
I just don't know. I would have to hear the experts on it, but his problem was more anxiety as I understood it than deficiency, that he just cannot deal -- cannot cope with dealing with what has happened and that's what I get from these reports.
So, they [the physicians] may say that his incompetence is more attributable to his anxiety than to any mental deficiency or they may say his level of mental deficiency, namely borderline, is not something that would render him incompetent.
These findings based on the record before the trial court are not clearly erroneous. D.C. Code § 17-305 (a) (1989).
The government's "constitutional power to bring an accused to trial is fundamental to a scheme of 'ordered liberty' and prerequisite to social Justice and peace." Khiem v. United States, supra note 3, 612 A.2d at 167 (quoting Illinois v. Allen, 397 U.S. 337, 347, 25 L. Ed. 2d 353, 90 S. Ct. 1057 (1970)). D.C. Code § 24-301 (a), as limited by Jackson, effectuates that power by requiring hospitalization for a limited time to permit expert evaluation and treatment that will aid the court in deciding whether the accused is likely to gain competency to stand trial in the foreseeable future. The fact that, as appellant instructs us, other jurisdictions have relaxed the mandatory nature of such commitment or adopted more elastic procedures does not establish the invalidity of the District's scheme. Congress could properly have determined that requiring -- as appellant would -- an ex ante determination of the "appropriateness of . . . commitment," i.e., of the accused's amenability to treatment and probable attainment of competency, even before hospitalization can be ordered is contrary to the important governmental interest underlying the statute. Cf. Khiem, 612 A.2d at 174 (rejecting "Khiem's claim that physicians may not inaugurate a course of treatment without advance assurance of probable success").
We conclude that the 60-day commitment which Judge Bowers ordered is consistent with the statute and the Constitution, and therefore affirm his order. The mandate shall ...