Cross v. Harris

Decision Date16 April 1969
Docket NumberNo. 22420.,22420.
Citation418 F.2d 1095
PartiesThomas B. CROSS, Appellant, v. David W. HARRIS, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. Edwin A. Williams, Washington, D. C. (appointed by this court) for appellant.

Mr. David C. Woll, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., at the time the brief was filed, and Frank Q. Nebeker, Asst. U. S. Atty., at the time the brief was filed, were on the brief, for appellee.

Before BAZELON, Chief Judge, and BURGER and ROBINSON, Circuit Judges.

BAZELON, Chief Judge:

This is an appeal from the dismissal of appellant's habeas corpus petition attacking his confinement in Saint Elizabeths Hospital under the Sexual Psychopath Act, adopted in 1948. 22 D.C.Code §§ 3503-11 (1967).

Appellant was first committed to Saint Elizabeths in 1952, when he was 18 years old, on account of his tendency to indecently expose himself in public. Indecent exposure is ordinarily punishable by a jail sentence of not more than 90 days.1 22 D.C.Code § 1112(a) (1967). Appellant was confined in Saint Elizabeths for 15 years. Upon his release in 1967, he married a woman he had met as a fellow patient; they now have one child.2 Several months after his release, however, he was arrested on charges of six different acts of indecent exposure and was once again determined to be a "sexual psychopath" within the meaning of 22 D.C.Code § 3503(1).3

At the commitment hearing in the Court of General Sessions, both the examining psychiatrists from D.C. General Hospital, Drs. Boschulte and Gordon, concluded that appellant was a sexual psychopath under the Sexual Psychopath Act, but recommended outpatient care in lieu of confinement in Saint Elizabeths. They testified that renewed hospitalization would "increase his emotional tensions" and "remove him for many years from self-support or support of his family" without "benefit to anyone." Instead, they prescribed a detailed program of outpatient therapy, coupled with medication to alleviate his tensions. Conceding that appellant's recent offenses had been committed while he was receiving outpatient treatment, the doctors believed these aberrances were caused by the temporary absence of "two very important people." Together with appellant's counsel, these psychiatrists offered to organize a treatment program which would offer some hope of preventing recurrences of such offensive conduct while appellant remained in the community.

While expressing a decided inclination to accept this offer, the court concluded that the terms of the Act precluded consideration of less drastic alternatives to indefinite confinement even if they were clearly preferable.4 Accordingly, appellant went off to Saint Elizabeths again, whence he filed the instant unsuccessful petition for habeas corpus.

The burden of appellant's argument is that proceedings under the Sexual Psychopath Act are essentially equivalent to ordinary civil commitments; that ordinary civil commitments, under the more recent Hospitalization of the Mentally Ill Act5 of 1964, require that possible dispositions less restrictive than total confinement must be explored and found to be inadequate before confinement can be ordered;6 and that since sexual offenders as a class are not more dangerous than the ordinarily committable mentally ill as a class,7 his confinement without consideration of possible less restrictive dispositions deprived him of the equal protection of the laws.8 Accordingly, he says the provision of the 1964 Act concerning alternative dispositions must be read into the Sexual Psychopath Act in order to save it from constitutional infirmity.9

Subsequent to the dismissal of appellant's petition below and to the filing of his brief in this court, we announced our decision in Millard v. Harris,10 in which we undertook an examination of the Sexual Psychopath Act in light of its legislative history and of the later passage of the 1964 Act. We concluded that the scope of the Sexual Psychopath Act of 1948 must be significantly restricted in two ways in order to avoid serious constitutional problems that would be raised by a broad construction of the statutory term "sexual psychopath." First, the words "not insane" must be read to mean "not `mentally ill.'" Second, a finding of "dangerousness" must be based on a high probability of substantial injury.11

In the proceedings below, appellant conceded that he was a "sexual psychopath" under the construction of the statute that prevailed prior to Millard. But both appellant and appellee agree that, unless Millard is to be abandoned, this case must be remanded to determine whether appellant is in fact a sexual psychopath under the statute as now construed. In aid of the remand, we consider the import of Millard and its application to this case.


Prior to the 1964 Act, commitment as a sexual psychopath and so-called civil commitment were mutually exclusive. By its terms, the Sexual Psychopath Act applies only to persons who are "not insane";12 and the civil commitment law prior to 1964 authorized commitment only of those who were "insane."13 When these statutes were enacted, "insanity" was largely equated with "psychosis."14 The Sexual Psychopath Act thus filled a gap in the commitment law.15 It was intended to be a humanitarian alternative to punishment for mentally disturbed potential sexual offenders who, some thought, could not be civilly committed and who, under the M'Naghten Rule then in effect, could not even plead "insanity" to criminal charges arising from their uncontrollable misconduct.

The term "insanity" and the attitudes it reflected were increasingly found artificial and inadequate.16 Recognizing this trend, Congress at the instance of Senator Ervin of North Carolina undertook an extensive examination of the civil commitment law. This effort brought forth the 1964 Act, which its drafters hoped would serve as an enlightened model for state legislation. It authorizes compulsory treatment for one suffering from "mental illness" and "likely to injure himself or other persons." 21 D.C.Code § 545(b) (1967). "Mental illness" was defined as any

psychosis or other disease which substantially impairs * * * mental health * * *.

21 D.C.Code § 501 (1967) (emphasis added). As we noted in Millard, this statute immediately raises a question as to whether there remains any gap for the Sexual Psychopath statute to fill.17 That is, it may well be that anyone committable under the Sexual Psychopath Act is mentally ill and likely to injure others, and therefore also committable under the 1964 Act.18 If so, commitment under the Sexual Psychopath Act would deprive a potential sexual offender of several important protections available to him under the 1964 Act. Among these are procedural safeguards19 and the requirement of a judicial inquiry into less restrictive alternatives to confinement.20 Such discrimination against the mentally ill whose illness manifests itself in sexual conduct would raise serious constitutional problems.21 The sexual nature of anticipated "dangerous" conduct may be relevant to the type of treatment to be given, but it cannot justify arbitrary differences in procedures for commitment or conditions of confinement.22

In Millard we declined to leap to the conclusion that there was no longer any permissible role for the Sexual Psychopath Act.23 Instead, we sought to save the statute by construing it to avoid the equal protection problems which would arise from an overlap with the new civil commitment law. We held that the statutory words "not insane" must now be read to mean "not `mentally ill'" within the meaning of the 1964 Act.24 Thus, the 1948 Sexual Psychopath Act now applies only to those who are not "mentally ill," while compulsory treatment of those who are "mentally ill" is governed by the 1964 Act. This construction restores the original relationship of mutual exclusivity between sexual psychopath commitments and other civil commitments. Under Millard, it remains for future cases to show whether there are in fact any dangerous sexual recidivists who are not "mentally ill" within the broad meaning of the 1964 Act.

In the case at bar, the examining doctors concluded, and appellant conceded, that he is "not insane"; but the doctors had no occasion to consider whether he was nonetheless "mentally ill." Since there is accordingly no record on this question, we must remand for a hearing and findings of fact necessary to a determination whether the statute was properly applied to appellant.


In Millard we found it unnecessary to decide whether the appellant was mentally ill, because from the "plethora of evidence"25 in the record we could conclude that he was not "dangerous to other persons" within the meaning of the Sexual Psychopath Act, and thus was not committable under it. In the instant case, appellant's dangerousness was not in issue below, so the record does not permit us to say whether he is dangerous. On remand, the court will have to decide that question if it determines that he is not mentally ill.26

We attempted in Millard to provide an analytical framework to guide lower courts in applying the conclusory term "dangerous to others."27 Without some such framework, "dangerous" could readily become a term of art describing anyone whom we would, all things considered, prefer not to encounter on the streets. We did not suppose that Congress had used "dangerous" in any such Pickwickian sense. Rather, we supposed that Congress intended the courts to refine the unavoidably vague concept of "dangerousness" on a case-by-case basis, in the traditional common-law fashion.

This does not mean, however, that the statutory language may be disregarded. To be "dangerous" for the purposes of the Sexual Psychopath Act, one must be

likely to attack or otherwise inflict injury, loss, pain, or other evil on the objects of his desire.28

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