USA v. Hinckley Jr., John W, No. 97-3183 (D.C. Cir. 1999)

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This opinion or order relates to an opinion or order originally issued on January 15, 1999.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed April 27, 1999

No. 97-3183

United States of America,

Appellee

v.

John W. Hinckley, Jr.,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 81cr00306-01)

On Appellee's Suggestion for Rehearing En Banc

BEFORE: Edwards, Chief Judge; Wald, Silberman, Williams, Ginsburg, Sentelle, Henderson, Randolph, Rogers, Tatel and Garland, Circuit Judges.

O R D E R

Appellee's petition for rehearing en banc and the response thereto have been circulated to the full court. The taking of

a vote was requested. Thereafter, a majority of the judges of the court in regular, active service did not vote in favor of the petition. Upon consideration of the foregoing, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk



Circuit Judges Ginsburg, Sentelle, Henderson and Randolph would grant the petition for rehearing en banc.

A statement of Circuit Judge Henderson dissenting from the denial of rehearing en banc, joined by Circuit Judges Ginsburg and Sentelle, is attached.

Karen LeCraft Henderson, Circuit Judge, with whom Ginsburg and Sentelle, Circuit Judges, join, dissenting from the denial of rehearing en banc:

The panel decision in this case sets a wrong and a danger- ous precedent. The decision is wrong for the reason I addressed at length in my panel dissent, Hinckley v. United States, 163 F.3d 647, 656-61 (D.C. Cir. 1999): Section 24-301 of the District of Columbia Code, as previously construed by this court, permits an inmate acquitted by reason of insanity to be "conditionally released under supervision" from hospital grounds only "if, after a hearing and weighing the evidence, the [district] court shall find that the condition of such person warrants his conditional release." D.C. Code section 24-301(e); see United States v. Ecker, 543 F.2d 178, 183 (D.C. Cir. 1976) (statutory procedure applies "when, and if, the patient is to cross the hospital boundary"). It is dangerous because it leaves to hospital administrators, rather than to judges as the Congress intended, final say in whether to release among the public members of what this court has justifiably called an "exceptionally dangerous class." Ecker, 543 F.2d at 186. That the panel's removal of the statutory check on hospital discretion compromises public safety is well illustrated in the history of Hinckley's commitment. Twice before his "conditional release under supervision" was pre- vented because of facts uncovered only after the hospital recommended release and the statutory procedure had com- menced. See United States v. Hinckley, 967 F. Supp. 557, 588 (D.D.C. 1997); United States v. Hinckley, 725 F. Supp. 616 (D.D.C. 1989). And Hinckley is not the only dangerous person the statutory procedure has kept from public circula- tion. See, e.g., United States v. Snyder, 529 F.2d 871 (D.C. Cir. 1976); United States v. Ecker, 479 F.2d 1206 (D.C. Cir. 1973). The full court's decision to leave intact the panel disposition hamstrings the statutory safeguard against such

menaces.* Accordingly, I dissent from denial of the govern- ment's petition for rehearing and for rehearing en banc.

* Requiring court approval upon the government's objection to a proposed attended release will not, as St. Elizabeths predicts, impose a "significant burden" on the hospital's administration. As the panel majority acknowledged, the government never objected to such a release before Hinckley and intended to do so in other cases only when it "thought court intervention would be necessary, based on concerns for public safety." 163 F.3d at 656.

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