Millard v. Harris

• Decision Date: 08 November 1968
• Docket Number: No. 21492.,21492.
• Citation: 406 F.2d 964
• Parties: Maurice I. MILLARD, Appellant, v. David W. HARRIS, Acting Superintendent, St. Elizabeths Hospital, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

406 F.2d 964 (1968)

Maurice I. MILLARD, Appellant, v. David W. HARRIS, Acting Superintendent, St. Elizabeths Hospital, Appellee.

No. 21492.

United States Court of Appeals District of Columbia Circuit.

Argued September 16, 1968.

Decided by Judgment Entered November 8, 1968.

Opinions Rendered December 12, 1968.

Mr. Armin U. Kuder, Washington, D. C., with whom Mr. David Carliner, Washington, D. C., was on the brief, for appellant.

Mr. Robert A. Ackerman, Atty., Department of Justice, with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Oscar Altshuler, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, WILBUR K. MILLER, Senior Circuit Judge, and WRIGHT, Circuit Judge.

BAZELON, Chief Judge:

The appellant challenges his continued commitment to Saint Elizabeths Hospital under the Sexual Psychopath Act.¹ He has been a patient there since October 17, 1962. Slightly more than a month before that date, he was charged in the old Municipal Court — now the Court of General Sessions — with indecent exposure, the maximum punishment for which was imprisonment for 90 days or a $300 fine, or both.² The Corporation Counsel for the District of Columbia, however, filed a statement with the court before trial stating that in addition to the allegations giving rise to the complaint "several females in the neighborhood have seen him expose himself" on other occasions. The court in response, and pursuant to the statute, directed two psychiatrists to examine Millard. The doctors reported to the court that "we have arrived at the conclusion that Maurice I. Millard is a sexual psychopath as defined in the Sexual Psychopath Statute." The court after a hearing then ordered the appellant committed to Saint Elizabeths "until he is restored to mental competence and released in accordance with the provisions of the * * * law."

The appellant has been before this Court before.³ On that occasion we remanded the case for an evidentiary hearing to determine (1) whether the original commitment fulfilled the requirements of the statute, (2) whether the sexual misconduct which the petitioner has or is likely to indulge in is sufficiently serious to justify commitment, and (3) whether the appellant was receiving at Saint Elizabeths the adequate psychiatric care and treatment to which we found him entitled.

Contrary to his prior representations to counsel, the appellant testified at the remand hearing that the two psychiatrists who examined him in 1962 did in fact testify at the hearing preceding his commitment. His attorney consequently no longer argues that the procedural requirements of the statute were not met. Nor does the appellant contest in this appeal the conclusion of the trial judge in the remand proceedings that Saint Elizabeths Hospital "is and has been treating petitioner." Millard does, however, vigorously challenge the finding of the court below that he "remains a sexual psychopath" as defined by the statute. Alternatively, he attacks the constitutional validity of the Sexual Psychopath Act and argues that the 1964 Hospitalization of the Mentally Ill Act⁴ partially or wholly supersedes the statute. In order to resolve these entwined issues, we must examine not only the record below, but also the uncertain position of the Sexual Psychopath Act in the District of Columbia statute books and under the Constitution.

I

The Sexual Psychopath Act was enacted in 1948 as "a humane and practical approach to the problem of persons unable to control their sexual emotions."⁵ Unlike the more recent legislation in a number of other jurisdictions, the statute permits proceedings for commitment as a sexual psychopath to be instituted either before or after trial, or for that matter even when no criminal charge is pending. A person may thus be hospitalized as a sexual psychopath without ever having been convicted of even a single criminal offense. While the legislative plan was "to provide for the commitment and treatment of sexual psychopaths in a manner similar to the treatment afforded insane persons,"⁶ Congress was explicit in its intention to exclude insane persons from the operation of the statute:

The term "sexual psychopath" means a person, not insane, who by a course of repeated misconduct in sexual matters has evidenced such lack of power to control his sexual impulses as to be dangerous to other persons because he is likely to attack or otherwise inflict injury, loss, pain or other evil on the objects of his desire.⁷

The exclusion of the insane, and the choice of language, was explicable in 1948. If an individual was "insane," he could be civilly committed; the commitment statute then in force spoke throughout in that language.⁸ And if a criminal defendant was "insane" at the time of his offense, the "insanity defense" would excuse him from punishment.

Nor was it then senseless to invoke the medical model and provide for the hospitalization of a class of persons who were not "insane." The tendency then still extant to equate that term to psychosis and a clear break with reality resulted in a large category of persons who were not "insane," but who needed and would profit from psychiatric treatment. This Court acknowledged as much when we first encountered the statute in 1953 and found it constitutional. The psychiatrist had reported that the petitioner in Miller v. Overholser⁹ was not "insane" in the then popular use of the term:

This man is not insane. He is of sound mind and does not display currently, any mental symptoms indicative of a psychosis. He is oriented in all fields and there are no delusions, neither are there any hallucinations.¹⁰

This Court, while concluding that the statute did not authorize his alleged "incarceration * * * in a place maintained for the * * * violent, criminal, hopeless insane," approved by implication commitment "in a place designed and operated for the treatment of the mentally ill who are not insane."¹¹

The twenty years since 1948, however, have seen broad changes in the attitudes and language with which both lawyers and psychiatrists approach mental disturbances. In 1954 this Court reformulated the insanity defense within the District of Columbia. Durham v. United States¹² announced the rule that "an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect." We adopted this "broader test" to escape the "misleading emphasis on the cognitive" of the M'Naghten rule¹³ and to free the jury as fact-finder "to consider all information advanced by relevant scientific disciplines."¹⁴ It was our hope thereby to allow the jury in making its moral judgments to be "guided by wider horizons of knowledge concerning mental life."¹⁵

In later defining a "mental disease or defect to include any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls,"¹⁶ we reaffirmed in McDonald v. United States that the insanity defense should encompass the fullest inquiry into the mental condition and development of the accused. Psychiatrists participating as expert witnesses in the application of the Durham rule have tortured themselves to decide which of the conditions tagged by name in their taxonomy should be called a "mental illness."¹⁷ The outcome of their efforts remains still uncertain.¹⁸ But regardless of what a particular doctor concludes should be christened a "mental illness," clearly an accused today need not be a hallucinating psychotic to pass through the eye of the insanity defense. Whatever the current state of "the esoteric and swiftly changing vocabulary of psychiatry,"¹⁹ as we made clear in McDonald the definition of "mental disease" is for the purposes of the insanity defense a legal and not a medical question. "What psychiatrists may consider a `mental disease or defect' for clinical purposes * * * may or may not be the same as mental disease for the jury's purpose in determining criminal responsibility."²⁰ Indeed, in our most recent effort to combat the tendency of expert witnesses to testify in conclusory fashion without discussion of the underlying facts relating to the defendant's mental condition, it was only with reluctance that we approved the continued use of the term "mental disease" in expert testimony:

Prohibition of testimony about "mental disease or defect" would not be a panacea. Other words and other concepts may similarly be transformed into labels. * * * At least for now, rather than prohibit testimony on "mental disease or defect," we shall try to help psychiatrists understand their role in court, and thus eliminate a fundamental cause of unsatisfactory expert testimony.²¹

The legislatively-formulated law of civil commitment has also changed in response to broadened conceptions of mental disturbances since the Sexual Psychopath Act was enacted. In 1964, after extensive hearings, Congress enacted the Hospitalization of the Mentally Ill Act²² to replace the 1939 statute entitled "An act to provide for insanity proceedings in the District of Columbia."²³ As the name given the new legislation suggests, the term used throughout the prior legislation, "insanity," is replaced in the new act by "mental illness." The definition provided by the legislature reflects the fuller, more contextual conception of mental disturbances which has permeated our formulation and administration of the insanity defense:

"mental illness" means a psychosis or other disease which substantially impairs the mental health of a person.²⁴

On the infrequent occasions upon which this Court has encountered the new statutory scheme, we have accorded the term "mental illness" a liberal construction. In re Alexander,²⁵ for example, affirmed the civil commitment of a disturbed mental defective with the following language:

Although * * * the psychiatrists * * * were reluctant to label appellant\'s illness a psychosis, or in fact to attempt to fit

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