The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on the proposal of St. Elizabeths Hospital for the conditional release of John W. Hinckley, Jr. pursuant to 24 D.C. Code § 501(e) -- a so-called "(e) proposal" or "(e) letter."*fn1 This is the latest in a series of proposals submitted by the Hospital to this Court over the years. On each occasion, the Hospital has sought to enlarge the scope and/or the duration of Mr. Hinckley's activities beyond the grounds of the Hospital, and the government has opposed the Hospital's proposals in whole or in part.
The Court has expanded Mr. Hinckley's freedom incrementally -- though each expansion has been contingent upon Mr. Hinckley's and his family's compliance with a stringent set of court-imposed conditions. At first, the Court allowed local day visits by Mr. Hinckley with his parents outside of the confines of St. Elizabeths Hospital without the supervision of Hospital personnel within a 50-mile radius of Washington, D.C. -- so-called Phase I visits. It then permitted local overnight visits by Mr. Hinckley with his parents within a 50-mile radius of Washington, D.C. (Phase II). Each visit was thoroughly assessed by the Hospital and Mr. Hinckley's treatment team before a subsequent visit took place.*fn2 There were a total of six Phase I visits and eight Phase II visits. By order of December 30, 2005, the Court permitted so-called Phase III visits to begin in January 2006; these were visits outside of the Washington metropolitan area to Mr. Hinckley's parents' community. See Hinckley III, 407 F. Supp. 2d at 265-68. The Court permitted three initial visits by Mr. Hinckley to his parents' home, each visit to last three nights or 76 hours in duration. See id. at 267. Thereafter, the Court permitted visits of four nights or 100 hours in duration. See id.*fn3 In June 2007, the Court permitted six additional Phase III visits, and expanded the duration of those visits from four nights to six nights. See Hinckley V, 493 F. Supp. 2d at 77-78. In January 2008, the Court permitted two additional Phase III visits: one to allow Mr. Hinckley to visit his ailing father, and the other to allow Mr. Hinckley to attend his father's funeral. In April 2008, the Court permitted an additional three visits to take place prior to the evidentiary hearing on the Hospital's current (e) Letter, which began on July 21, 2008. Lastly, at the conclusion of the most recent evidentiary hearing, the Court permitted Mr. Hinckley "to continue with visits to [his] mother's home outside the Washington, D.C. area for six nights in duration, until further order of this Court[.]" United States v. Hinckley, Criminal No. 81-0306, Order at 1 (D.D.C. Aug. 15, 2008). These periodic visits have continued to this day and each, according to the Hospital's written reports to the Court, has been therapeutic, without incident and, by all measures, successful.
The Hospital's current (e) Letter is premised on the notion that Mr. Hinckley is ready for Phase IV -- that is, the phase in which (1) Mr. Hinckley is permitted to utilize more absences from the Hospital, increased freedom, and additional privileges to begin integrating himself into his mother's community, and (2) the Hospital evaluates this process to determine whether Mr. Hinckley is ready to be released from the Hospital to live independently in his mother's community. See Hinckley V, 493 F. Supp. 2d at 66 ("The ultimate goal of Phase IV is to determine if Mr. Hinckley is ready to be released from the Hospital to live independently in his parents' community."). As the Court previously explained, Phase III is conceived of as an opportunity for "change of venue" outings from the Washington, D.C. area to the Hinckleys' community, while Phase IV is viewed as a "transitional stage" in which Mr. Hinckley would be expected to focus on "social and potential vocational" integration into his mother's community. Hinckley III, 407 F. Supp. 2d at 261. Of course, even if Mr. Hinckley were to become a permanent resident of his mother's community in the future, it is assumed that he would have the support of his mother -- so long as she is alive and healthy -- his siblings, and psychiatric and counseling professionals in the community.
To begin the Phase IV process, the Hospital's (e) Letter asks the Court to expand Mr. Hinckley's current conditional release privileges to include the following elements:
1. [Mr. Hinckley] will be allowed to utilize 12 overnight visits to [his mother's hometown] that will last from Saturday until the second Monday thereafter or for a total of up to ten days and nine nights.
2. John Lee, M.D. will remain as the covering psychiatrist in [Mr. Hinckley's mother's hometown]. This means that Dr. Lee will provide psychiatric coverage, assess mental health status, and if necessary, provide emergency medication management. Mr. Carl Beffa, LCSW will be named as [Mr. Hinckley's] social worker in [Mr. Hinckley's mother's hometown]. He will provide individual therapy, guidance, and assistance, especially in the form of social services [and case management].
3. [Mr. Hinckley] will meet with John Lee, M.D. and Mr. Carl Beffa, LCSW once each during each visit to [his mother's hometown]. Both providers will independently interview, assess, and complete a Checklist [describing their observations] provided by the Hosptial and fax it to the Hospital within one week. . . .
4. John Lee, M.D. and Carl Beffa, LCSW will participate in post-visit telephone conferences with the treatment team after each visit to discuss the visit and any concerns/issues or additional treatment goals.
5. Carl Beffa, LCSW and Sidney Binks, Ph.D. will communicate by telephone after each visit to discuss and collaborate on the course of therapy with [Mr. Hinckley].
6. John Lee, M.D. and Carl Beffa, LCSW will participate . . . via telephone conference in Individualized Recovery Plans with the treatment team every three months, or as scheduled.
7. [Mr. Hinckley] will utilize "B" city privileges with Mr. Shamblee, LICSW to take the written driver's test at the D.C. DMV to obtain a [learner's permit]. Two weeks notice of this occurrence will be given to the Court.
8. [Mr. Hinckley] will be allowed unaccompanied time in [his mother's hometown] to attend [a specific driving school]. This will require seven driving lessons of 60-minutes each.
9. [Mr. Hinckley] will utilize "B" city privileges with Mr. Shamblee, LICSW to take the driver's test at the D.C. DMV and will require approximately 30-minutes of unaccompanied time in the family's car with the examiner to take the driver's test.
10. [Mr. Hinckley] will be permitted to drive the family car with a learner's permit and later with a driver's license with a responsible person/custodian present with him at all times.
11. On each of the outings [to his mother's hometown], [Mr. Hinckley] will be permitted to utilize up to two-hours of unaccompanied privileges twice daily within his mother's subdivision with her cell phone between the hours of 9:00 a.m. to 5:00 p.m. standard time and 9:00 a.m. to 9:00 p.m. daylight savings time. He will notify his custodian/responsible person and the Hospital and provide the name, address and telephone number before he visits the residence of a neighbor or new friend in the subdivision.
12. [Mr. Hinckley] will be allowed unaccompanied privileges [in his mother's hometown] for up to five hours twice per week, Tuesdays and Thursdays from 8:00 a.m. to 12:00 p.m. for volunteer services at [a particular organization] . . . plus one hour to cover any transportation delays from the actual volunteer sites[.] A copy of his intended work schedule will be listed in his itinerary to the Court.*fn4
13. [Mr. Hinckley] will be permitted unaccompanied time in [his mother's hometown] for up to three hours per day twice per week between the hours of 8:00 a.m. and 9:00 p.m. for specific social, recreation, worship, or shopping related activities that will be presented in an approved itinerary prior to the outing.*fn5
14. The treatment team will coordinate these visits and unaccompanied time with [Mr. Hinckley], his mother and siblings, John Lee, M.D., Carl Beffa, LCSW, and any other agencies involved. An objective/goal list will be developed . . . for each outing and distributed to each of the above persons.
15. [Mr. Hinckley] will be permitted unaccompanied time in Washington, D.C. for up to four hours twice per week between the hours of 8:00 a.m. -- 3:00 p.m. to volunteer at [a particular organization]. . . . Transportation to and from [the organization] will be provided by the Hospital. A copy of his intended work schedule will be submitted to the Court with a two week notice.
16. After six weeks of volunteering [in his mother's hometown] and/or [in Washington, D.C.], if deemed appropriate by [the participating] agencies, [Mr. Hinckley], and the treatment team, these volunteer activities may be increased such that he would work up to five times per week for four hours per day as per the previous conditions listed above.
17. Should the above listed volunteer positions no longer be available to [Mr. Hinckley] he would be permitted to volunteer at another site under the same conditions as cited above and the Hospital will notify the Court two weeks in advance of any changes to his volunteer site.
Hospital's (e) Letter at 13-15. Though not formally included in the list of elements of Mr. Hinckley's proposed conditional release, the Hospital also anticipates that Mr. Hinckley will receive support while in his mother's hometown from Reverend Harry Warren. Reverend Warren is the director of Walk the Talk, "a free, non-profit program that provides assistance in community re-entry, mentoring, support, and assistance to inmates and ex-convicts recently released from jail." Hospital's (e) Letter at 3. Mr. Hinckley fully supports the Hospital's (e) Letter, and -- unlike previous years -- he has not submitted his own petition for an expansion of conditional release privileges under 24 D.C. Code § 501(k).
For reasons discussed below, the government opposes the Hospital's proposal and urges the Court to adopt a more conservative plan for the expansion of Mr. Hinckley's conditional release privileges. As described in open court, the government's alternative plan includes the following elements:
1. Mr. Hinckley will be permitted to engage in certain Phase IV activities during overnight visits to his mother's hometown, but the length of his overnight visits will not be expanded from the current length (up to six nights in duration) to the length proposed by the Hospital (up to nine nights in duration).
2. Phase IV activities will be scheduled in a manner that will, to the greatest extent possible, permit Mr. Hinckley to attend weekly therapy sessions at the Hospital.
3. Before Mr. Hinckley accepts any volunteer position, that position must be approved by Mr. Hinckley's treatment team and the Hospital's review board and submitted to the Court. Moreover, the Hospital will notify the Court and counsel for both parties at least four weeks in advance of Mr. Hinckley beginning his first volunteer position. For all subsequent volunteer positions, the Hospital will notify the Court and counsel for both parties at least two weeks in advance of Mr. Hinckley's proposed start date.
4. Mr. Hinckley must participate in a volunteer position to enjoy the "expansion of his social privileges" proposed by the Hospital -- that is, the "three hours [of] unsupervised [time] in the community and extra time alone in [his mother's] subdivision[.]"
5. Mr. Hinckley will not be permitted to enjoy any of the expanded social privileges proposed by the Hospital "until he has demonstrated his commitment to the process by completing volunteer work on at least three consecutive [overnight] trips."
6. Mr. Beffa will not be the case manager for Mr. Hinckley while he is in his mother's hometown.
7. Mr. Hinckley will be required to carry a GPS-enabled cell phone while unaccompanied during his conditional releases.
8. Mr. Hinckley will not be permitted to engage in any volunteer activities in the District of Columbia.
Transcript of Hearing at 44-46 (Aug. 6, 2008) (closing argument of counsel for the government).
I. THE PARTIES' ARGUMENTS
The Hospital and Mr. Hinckley offer a straightforward argument in support of the Hospital's Phase IV proposal. In short, they contend that by compiling "a perfect . . . record of success on conditional release" thus far, Mr. Hinckley has demonstrated his readiness for Phase IV and a concomitant increase in conditional release privileges, Transcript of Hearing at 16 (July 21, 2008 -- morning session) (opening statement of counsel for Mr. Hinckley); that Mr. Hinckley would benefit therapeutically from an increase in conditional release privileges; that the government has failed to present any evidence that Mr. Hinckley would be a danger to himself or to others under the Hospital's proposal; and that the terms under which the Hospital proposes to expand Mr. Hinckley's conditional release privileges adequately guard against the (remote) possibility that Mr. Hinckley may decompensate and become dangerous. Accordingly, Mr. Hinckley and the Hospital ask the Court to adopt without modification the seventeen recommendations in the Hospital's (e) Letter.
As indicated above, the government does not object to every aspect of the Hospital's proposal. For example, it is "not seeking to stop driving lessons, volunteer activities, [or] social activities." Transcript of Hearing at 78 (July 23, 2008 -- morning session) (comments by counsel for the government). For various reasons, however, the government argues that the Hospital underestimates the risk that Mr. Hinckley's mental illness may cause him to become dangerous to himself or to others; the Hospital's proposal fails to address or ameliorate sufficiently the risk factors that contribute to Mr. Hinckley's potential dangerousness; and the support structure proposed for Mr. Hinckley in his mother's hometown is inadequate. The government therefore urges the Court to adopt its more conservative plan.
With respect to Mr. Hinckley's mental health, the government argues that during the preceding year "we have seen a further development of several behaviors that have been universally recognized as risk factors for further violence" on Mr. Hinckley's part. Government's Motion to Deny Hospital's Request for Expanded Conditions of Release at 3 (June 4, 2008) ("Gov. Mot."). Much of the government's argument on this score focuses on Mr. Hinckley's relationships with women. In the government's view, "Mr. Hinckley's [mental] illness [still] prevents him from realistically appreciating his relationships with women; this puts him at an increased risk for violence due to depression or due to a request to act out to demonstrate his love for a woman." Transcript of Hearing at 40 (Aug. 6, 2008) (closing argument of counsel for the government). Thus, according to the government, it is worrisome that over the course of the preceding year [Mr. Hinckley] maintain[ed] near simultaneous sexual relationships with ["Ms. M," who suffers from bipolar disorder, and "Ms. G," who is in a long-term relationship with another man].
While he was maintaining these two relationships, he rekindled his relationship with [former girlfriend Leslie DeVeau in June 2007]. Then, in November 2007, he met a fourth woman [through Ms. G], [named "Ms. B"]. It is unclear whether his relationship with her has become romantic, but they meet and converse regularly . . . . The Hospital has asked Mr. Hinckley to keep a written log of his interactions with women "[b]ecause of the significant increase in his interactions with women."
Gov. Mot. at 3 (quoting Hospital's (e) Letter at 7); see also Hospital's (e) Letter at 5 (setting forth a similar description of Mr. Hinckley's recent relationships). At the evidentiary hearing, there was also testimony to the effect that Mr. Hinckley had recently struck up a friendship with a "Ms. K." That friendship apparently continues to ...