18 U.S.C. § 4243 — Hospitalization of a person found not

Page 930 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 4242 4247(d), to determine the competency of the de- fendant. If, after the hearing, the court finds by a preponderance of the evidence that the defend- ant has recovered to such an extent that he is able to understand the nature and consequences of the proceedings against him and to assist properly in his defense, the court shall order his immediate discharge from the facility in which he is hospitalized and shall set the date for trial or other proceedings. Upon discharge, the de- fendant is subject to the provisions of chapters 207 and 227. (f) ADMISSIBILITY OF FINDING OF COMPETENCY.— A finding by the court that the defendant is mentally competent to stand trial shall not prejudice the defendant in raising the issue of his insanity as a defense to the offense charged, and shall not be admissible as evidence in a trial for the offense charged. (June 25, 1948, ch. 645, 62 Stat. 855; Pub. L. 98–473, title II, § 403(a), Oct. 12, 1984, 98 Stat. 2057; Pub. L. 109–248, title III, § 302(2), July 27, 2006, 120 Stat. 619.) HISTORICAL AND REVISION NOTES Based on title 18, U.S.C., 1940 ed., § 876 (May 13, 1930, ch. 254, § 6, 46 Stat. 271). Changes were made in phraseology and surplusage omitted. Editorial Notes AMENDMENTS 2006—Pub. L. 109–248, § 302(2)(A), inserted ‘‘to undergo postrelease proceedings’’ after ‘‘trial’’ in section catch- line. Subsec. (a). Pub. L. 109–248, § 302(2)(B), inserted ‘‘or at any time after the commencement of probation or su- pervised release and prior to the completion of the sen- tence,’’ after ‘‘sentencing of the defendant,’’. Subsec. (d). Pub. L. 109–248, § 302(2)(C), substituted ‘‘proceedings to go forward’’ for ‘‘trial to proceed’’ wherever appearing and ‘‘sections 4246 and 4248’’ for ‘‘section 4246’’ in concluding provisions. Subsec. (e). Pub. L. 109–248, § 302(2)(D), inserted ‘‘or other proceedings’’ after ‘‘trial’’ and substituted ‘‘chap- ters 207 and 227’’ for ‘‘chapter 207’’. 1984—Pub. L. 98–473 amended section generally, sub- stituting ‘‘Determination of mental competency to stand trial’’ for ‘‘Examination and transfer to hospital’’ in section catchline, and substituting provisions relat- ing to motion, report, hearing, etc., for determination of competency of defendant, for provisions relating to boards of examiners for examination of inmates of Fed- eral penal and correctional institutions and transfer of such inmates to hospitals. Statutory Notes and Related Subsidiaries SHORT TITLE OF 1984 AMENDMENT Pub. L. 98–473, title II, § 401, Oct. 12, 1984, 98 Stat. 2057, provided that: ‘‘This chapter [chapter IV (§§ 401–406) of title II of Pub. L. 98–473, enacting section 20 of this title and amending this chapter, section 3006A of this title, and rule 12.2 of the Federal Rules of Criminal Proce- dure and rule 704 of the Federal Rules of Evidence set out in the Appendix to this title] may be sited [cited] as the ‘Insanity Defense Reform Act of 1984’.’’ § 4242. Determination of the existence of insanity at the time of the offense (a) MOTION FOR PRETRIAL PSYCHIATRIC OR PSY- CHOLOGICAL EXAMINATION.—Upon the filing of a notice, as provided in Rule 12.2 of the Federal Rules of Criminal Procedure, that the defendant intends to rely on the defense of insanity, the court, upon motion of the attorney for the Gov- ernment, shall order that a psychiatric or psy- chological examination of the defendant be con- ducted, and that a psychiatric or psychological report be filed with the court, pursuant to the provisions of section 4247(b) and (c). (b) SPECIAL VERDICT.—If the issue of insanity is raised by notice as provided in Rule 12.2 of the Federal Rules of Criminal Procedure on motion of the defendant or of the attorney for the Gov- ernment, or on the court’s own motion, the jury shall be instructed to find, or, in the event of a nonjury trial, the court shall find the defend- ant— (1) guilty; (2) not guilty; or (3) not guilty only by reason of insanity. (June 25, 1948, ch. 645, 62 Stat. 855; Pub. L. 98–473, title II, § 403(a), Oct. 12, 1984, 98 Stat. 2059.) HISTORICAL AND REVISION NOTES Based on title 18, U.S.C., 1940 ed., § 877 (May 13, 1930, ch. 254, § 7, 46 Stat. 272). Minor change was made in phraseology. Editorial Notes AMENDMENTS 1984—Pub. L. 98–473 amended section generally, sub- stituting ‘‘Determination of the existence of insanity at the time of the offense’’ for ‘‘Retransfer upon recov- ery’’ in section catchline, and substituting provisions relating to motion for pretrial psychiatric or psycho- logical examination, and special verdict, for provisions relating to retransfer to a penal or correctional institu- tion upon recovery of an inmate of the United States hospital for defective delinquents. § 4243. Hospitalization of a person found not guilty only by reason of insanity (a) DETERMINATION OF PRESENT MENTAL CONDI- TION OF ACQUITTED PERSON.—If a person is found not guilty only by reason of insanity at the time of the offense charged, he shall be committed to a suitable facility until such time as he is eligi- ble for release pursuant to subsection (e). (b) PSYCHIATRIC OR PSYCHOLOGICAL EXAMINA- TION AND REPORT.—Prior to the date of the hear- ing, pursuant to subsection (c), the court shall order that a psychiatric or psychological exam- ination of the defendant be conducted, and that a psychiatric or psychological report be filed with the court, pursuant to the provisions of section 4247(b) and (c). (c) HEARING.—A hearing shall be conducted pursuant to the provisions of section 4247(d) and shall take place not later than forty days fol- lowing the special verdict. (d) BURDEN OF PROOF.—In a hearing pursuant to subsection (c) of this section, a person found not guilty only by reason of insanity of an of- fense involving bodily injury to, or serious dam- age to the property of, another person, or in- volving a substantial risk of such injury or dam- age, has the burden of proving by clear and con- vincing evidence that his release would not cre- ate a substantial risk of bodily injury to another person or serious damage of property of another due to a present mental disease or defect. With respect to any other offense, the person has the Page 931 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 4243 burden of such proof by a preponderance of the evidence. (e) DETERMINATION AND DISPOSITION.—If, after the hearing, the court fails to find by the stand- ard specified in subsection (d) of this section that the person’s release would not create a sub- stantial risk of bodily injury to another person or serious damage of property of another due to a present mental disease or defect, the court shall commit the person to the custody of the Attorney General. The Attorney General shall release the person to the appropriate official of the State in which the person is domiciled or was tried if such State will assume responsi- bility for his custody, care, and treatment. The Attorney General shall make all reasonable ef- forts to cause such a State to assume such re- sponsibility. If, notwithstanding such efforts, neither such State will assume such responsi- bility, the Attorney General shall hospitalize the person for treatment in a suitable facility until— (1) such a State will assume such responsi- bility; or (2) the person’s mental condition is such that his release, or his conditional release under a prescribed regimen of medical, psy- chiatric, or psychological care or treatment, would not create a substantial risk of bodily injury to another person or serious damage to property of another; whichever is earlier. The Attorney General shall continue periodically to exert all reasonable ef- forts to cause such a State to assume such re- sponsibility for the person’s custody, care, and treatment. (f) DISCHARGE.—When the director of the facil- ity in which an acquitted person is hospitalized pursuant to subsection (e) determines that the person has recovered from his mental disease or defect to such an extent that his release, or his conditional release under a prescribed regimen of medical, psychiatric, or psychological care or treatment, would no longer create a substantial risk of bodily injury to another person or seri- ous damage to property of another, he shall promptly file a certificate to that effect with the clerk of the court that ordered the commit- ment. The clerk shall send a copy of the certifi- cate to the person’s counsel and to the attorney for the Government. The court shall order the discharge of the acquitted person or, on the mo- tion of the attorney for the Government or on its own motion, shall hold a hearing, conducted pursuant to the provisions of section 4247(d), to determine whether he should be released. If, after the hearing, the court finds by the stand- ard specified in subsection (d) that the person has recovered from his mental disease or defect to such an extent that— (1) his release would no longer create a sub- stantial risk of bodily injury to another per- son or serious damage to property of another, the court shall order that he be immediately discharged; or (2) his conditional release under a prescribed regimen of medical, psychiatric, or psycho- logical care or treatment would no longer cre- ate a substantial risk of bodily injury to an- other person or serious damage to property of another, the court shall— (A) order that he be conditionally dis- charged under a prescribed regimen of med- ical, psychiatric, or psychological care or treatment that has been prepared for him, that has been certified to the court as appro- priate by the director of the facility in which he is committed, and that has been found by the court to be appropriate; and (B) order, as an explicit condition of re- lease, that he comply with the prescribed regimen of medical, psychiatric, or psycho- logical care or treatment. The court at any time may, after a hearing em- ploying the same criteria, modify or eliminate the regimen of medical, psychiatric, or psycho- logical care or treatment. (g) REVOCATION OF CONDITIONAL DISCHARGE.— The director of a medical facility responsible for administering a regimen imposed on an acquit- ted person conditionally discharged under sub- section (f) shall notify the Attorney General and the court having jurisdiction over the person of any failure of the person to comply with the reg- imen. Upon such notice, or upon other probable cause to believe that the person has failed to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment, the person may be arrested, and, upon arrest, shall be taken without unnecessary delay before the court having jurisdiction over him. The court shall, after a hearing, determine whether the person should be remanded to a suitable fa- cility on the ground that, in light of his failure to comply with the prescribed regimen of med- ical, psychiatric, or psychological care or treat- ment, his continued release would create a sub- stantial risk of bodily injury to another person or serious damage to property of another. (h) LIMITATIONS ON FURLOUGHS.—An individual who is hospitalized under subsection (e) of this section after being found not guilty only by rea- son of insanity of an offense for which sub- section (d) of this section creates a burden of proof of clear and convincing evidence, may leave temporarily the premises of the facility in which that individual is hospitalized only— (1) with the approval of the committing court, upon notice to the attorney for the Gov- ernment and such individual, and after oppor- tunity for a hearing; (2) in an emergency; or (3) when accompanied by a Federal law en- forcement officer (as defined in section 115 of this title). (i) CERTAIN PERSONS FOUND NOT GUILTY BY REASON OF INSANITY IN THE DISTRICT OF COLUM- BIA.— (1) TRANSFER TO CUSTODY OF THE ATTORNEY GENERAL.—Notwithstanding section 301(h) of title 24 of the District of Columbia Code, and notwithstanding subsection 4247(j) of this title, all persons who have been committed to a hospital for the mentally ill pursuant to sec- tion 301(d)(1) of title 24 of the District of Co- lumbia Code, and for whom the United States has continuing financial responsibility, may be transferred to the custody of the Attorney General, who shall hospitalize the person for treatment in a suitable facility. (2) APPLICATION.— Page 932 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 4244 (A) IN GENERAL.—The Attorney General may establish custody over such persons by filing an application in the United States District Court for the District of Columbia, demonstrating that the person to be trans- ferred is a person described in this sub- section. (B) NOTICE.—The Attorney General shall, by any means reasonably designed to do so, provide written notice of the proposed trans- fer of custody to such person or such per- son’s guardian, legal representative, or other lawful agent. The person to be transferred shall be afforded an opportunity, not to ex- ceed 15 days, to respond to the proposed transfer of custody, and may, at the court’s discretion, be afforded a hearing on the pro- posed transfer of custody. Such hearing, if granted, shall be limited to a determination of whether the constitutional rights of such person would be violated by the proposed transfer of custody. (C) ORDER.—Upon application of the Attor- ney General, the court shall order the person transferred to the custody of the Attorney General, unless, pursuant to a hearing under this paragraph, the court finds that the pro- posed transfer would violate a right of such person under the United States Constitu- tion. (D) EFFECT.—Nothing in this paragraph shall be construed to— (i) create in any person a liberty interest in being granted a hearing or notice on any matter; (ii) create in favor of any person a cause of action against the United States or any officer or employee of the United States; or (iii) limit in any manner or degree the ability of the Attorney General to move, transfer, or otherwise manage any person committed to the custody of the Attorney General. (3) CONSTRUCTION WITH OTHER SECTIONS.— Subsections (f) and (g) and section 4247 shall apply to any person transferred to the custody of the Attorney General pursuant to this sub- section. (June 25, 1948, ch. 645, 62 Stat. 855; Pub. L. 98–473, title II, § 403(a), Oct. 12, 1984, 98 Stat. 2059; Pub. L. 100–690, title VII, § 7043, Nov. 18, 1988, 102 Stat. 4400; Pub. L. 104–294, title III, § 301(a), Oct. 11, 1996, 110 Stat. 3494.) HISTORICAL AND REVISION NOTES Based on title 18, U.S.C., 1940 ed., § 878 (May 13, 1930, ch. 254, § 8, 46 Stat. 272). Changes were made in translations and phraseology, and unnecessary words omitted. Editorial Notes AMENDMENTS 1996—Subsec. (i). Pub. L. 104–294 added subsec. (i). 1988—Subsec. (h). Pub. L. 100–690 added subsec. (h). 1984—Pub. L. 98–473 amended section generally, sub- stituting ‘‘Hospitalization of a person found not guilty only by reason of insanity’’ for ‘‘Delivery to state au- thorities on expiration of sentence’’ in section catch- line, and substituting provisions relating to determina- tion of present mental condition of acquitted person, examination and report, hearing, etc., for provisions re- lating to duties of the superintendent of the United States hospital for defective delinquents regarding de- livery to state authorities on expiration of sentence of any insane person. Statutory Notes and Related Subsidiaries SEVERABILITY Pub. L. 104–294, title III, § 301(d), Oct. 11, 1996, 110 Stat. 3495, provided that: ‘‘If any provision of this section [amending this section and enacting provisions set out as notes below], an amendment made by this section, or the application of such provision or amendment to any person or circumstance is held to be unconstitutional, the remainder of this section and the amendments made by this section shall not be affected thereby.’’ TRANSFER OF RECORDS Pub. L. 104–294, title III, § 301(b), Oct. 11, 1996, 110 Stat. 3495, provided that: ‘‘Notwithstanding any provision of the District of Columbia Code or any other provision of law, the District of Columbia and St. Elizabeth’s Hos- pital— ‘‘(1) not later than 30 days after the date of enact- ment of this Act [Oct. 11, 1996], shall provide to the Attorney General copies of all records in the custody or control of the District or the Hospital on such date of enactment pertaining to persons described in sec- tion 4243(i) of title 18, United States Code (as added by subsection (a)); ‘‘(2) not later than 30 days after the creation of any records by employees, agents, or contractors of the District of Columbia or of St. Elizabeth’s Hospital pertaining to persons described in section 4243(i) of title 18, United States Code, provide to the Attorney General copies of all such records created after the date of enactment of this Act; ‘‘(3) shall not prevent or impede any employee, agent, or contractor of the District of Columbia or of St. Elizabeth’s Hospital who has obtained knowledge of the persons described in section 4243(i) of title 18, United States Code, in the employee’s professional capacity from providing that knowledge to the Attor- ney General, nor shall civil or criminal liability at- tach to such employees, agents, or contractors who provide such knowledge; and ‘‘(4) shall not prevent or impede interviews of per- sons described in section 4243(i) of title 18, United States Code, by representatives of the Attorney Gen- eral, if such persons voluntarily consent to such interviews.’’ CLARIFICATION OF EFFECT ON CERTAIN TESTIMONIAL PRIVILEGES Pub. L. 104–294, title III, § 301(c), Oct. 11, 1996, 110 Stat. 3495, provided that: ‘‘The amendments made by this section [amending this section and enacting provisions set out as notes above] shall not be construed to affect in any manner any doctor-patient or psychotherapist- patient testimonial privilege that may be otherwise ap- plicable to persons found not guilty by reason of insan- ity and affected by this section.’’ § 4244. Hospitalization of a convicted person suf- fering from mental disease or defect (a) MOTION TO DETERMINE PRESENT MENTAL CONDITION OF CONVICTED DEFENDANT.—A defend- ant found guilty of an offense, or the attorney for the Government, may, within ten days after the defendant is found guilty, and prior to the time the defendant is sentenced, file a motion for a hearing on the present mental condition of the defendant if the motion is supported by sub- stantial information indicating that the defend- ant may presently be suffering from a mental