United States of America, Appellee, v. John W. Hinckley, Jr., Appellant, 174 F.3d 238 (D.C. Cir. 1999)

Upon consideration of appellee's petition for rehearing filed March 1, 1999, and of the response thereto, it is

ORDERED that the petition be denied.

O R D E R

On Appellee's Suggestion for Rehearing En Banc

PER CURIAM:

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.

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 dangerous 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 prevented because of facts uncovered only after the hospital recommended release and the statutory procedure had commenced. See United States v. Hinckley, 967 F. Supp. 557, 558 (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 circulation. 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 government's petition for rehearing and for rehearing en banc.