Subsection (c) sets forth the requirements of the report that is to be filed and subsection (d) describes the hearing that is to be held. Both of these subsections are identical to the parallel subsections in section 3614.

Subsection (e) of section 3615 provides that if, after the hearing, the court is of the opinion that the defendant is presently suffering from a mental disease or defect for the treatment of which he is in need of custody, care, or treatment in a mental hospital, the court then must commit the defendant to the custody of the Attorney General, who must hospitalize the defendant for treatment in a suitable mental hospital or other facility.

The Committee has determined that the defendant's hospitalization must be based upon the court's opinion, and not upon a preponderance of the evidence, since the defendant had already been committed to the Bureau of Prisons which has wide discretion with respect to the defendant's hospitalization.60 Thus, the Bureau should not have too great a burden of proof placed upon it. Moreover, the defendant is protected in that the head of the facility is under an affirmative duty, pursuant to section 3615 (f), to notify the committing court when the defendant is no longer in need of treatment. The head of the facility must also make, under section 3615 (g), annual reports concerning the mental condition of the defendant and recommendations concerning his continued hospitalization to the committing court. Furthermore, the defendant's hospitalization may not continue past his original sentence without a hearing and court order pursuant to section 3616. Accordingly, the Committee has taken precautions to insure that a defendant will not be wrongfully hospitalized or wrongfully detained in a mental hospital.

The subsection also provides that the commitment must be for the remainder of the defendant's sentence. If the defendant has not recovered from his mental illness before his sentence expires, procedures for commitment may be undertaken pursuant to section 3516. If, however, the defendant recovers before his sentence expires he is subject to release and reimprisonment pursuant to subsection (f) of this section.

Under subsection (f), when the head of the facility in which the defendant is hospitalized determines that the defendant has recovered from his mental disease or defect to the extent that he is no longer in need of custody, care, or treatment in a mental hospital, such head shall file a certificate so stating with the clerk of the committing court. If, at the time of the filing of the certificate, the sentence imposed upon the defendant has not expired, the court must order that the defendant be released from the mental hospital and reimprisoned. Since after the defendant is reimprisoned he will be in the custody of the Bureau of Prisons, the Bureau may designate the place of imprisonment of the defendant pursuant to subchapter C of chapter 38. Also, the defendant may be eligible for parole pursuant to the provisions of subchapter D of chapter 38.

Subsection (g) requires the head of the facility in which a defendant is hospitalized to submit annual reports concerning the mental condition of the defendant and recommendations concerning his continued

See subchapter C of chapter 38.

hospitalization to the committing court. A similar provision is included in other sections of this subchapter.

The Committee has required that the head of the facility make these reports whenever a person is hospitalized pursuant to this subchapter to insure that the person is not lost in the bureaucratic shuffle. These reports are especially important where a defendant is incarcerated and is later transferred to a mental hospital because it is these defendants who may have no friends or relatives on the outside who can keep track of them.

SECTION 3616. HOSPITALIZATION OF A PERSON DUE FOR RELEASE BUT SUFFERING FROM MENTAL DISEASE OR DEFECT

1. In General

Section 3616 covers those circumstances where State authorities will not institute civil commitment proceedings against a hospitalized defendant whose Federal sentence is about to expire or against whom all criminal charges have been dropped and who is presently mentally ill. At such a point the responsibility for the care of insane persons is essentially a function of the States.1 The Committee intends that this section be used only in those rare circumstances where a defendant has no permanent residence and there are no State authorities willing to accept the defendant for commitment.

2. Present Federal Law

18 U.S.C. 4243 provides that the superintendent of the United States hospital for defective delinquents must notify the proper State authorities of the date of expiration of sentence of any prisoner who is still insane. The superintendent then must deliver the prisoner to these authorities.

18 U.S.C. 4247 sets out an alternate procedure to be followed where suitable arrangements are not available for the custody and care of a prisoner who is insane and whose sentence is about to expire. The Director of the Bureau of Prisons must certify, and the Attorney General must transmit, a certificate to the court for the district in which the prisoner is confined, that, in the judgment of the Director, and the Board of Examiners provided for in 18 U.S.C. 4241, the prisoner is presently insane. The court then must order that the prisoner be examined by two qualified psychiatrists, one designated by the court and one selected by the prisoner. After the examination a hearing must be held, and if the court determines that the prisoner is insane or mentally incompetent and that if released he will probably endanger the safety of the officers, the property, or other interests of the United States, and that suitable arrangements for the custody and care of the prisoner are not otherwise available, the court may commit the prisoner to the custody of the Attorney General.

18 U.S.C. 4248 provides that a commitment pursuant to 18 U.S.C. 4247 shall run until the sanity of the person is restored or until other suitable arrangements have been made with the State of residence of the prisoner. Whenever either of these events occur, the Attorney General must file a termination certificate with the committing court. In addition, it is provided that nothing in section 4248 precludes a prisoner committed under section 4247 from establishing his eligibility for release by a writ of habeas corpus.

See Higgins v. United States, 205 F.2d 650 (9th Cir. 1953).

3. Provisions of S. 1, as Reported

Subsection (a) of section 3616 places responsibility in the head of the facility in which a defendant is hospitalized pursuant to this subchapter, and whose sentence is about to expire or against whom all charges have been dropped, to determine preliminarily whether the defendant should be released. Whenever the head of the facility determines that the defendant is presently suffering from a mental disease or defect as a result of which his release would create a substantial danger to himself or to the person or property of another, he is required to notify the proper authorities in the State in which the defendant maintains a residence to determine if the State will assume responsibility for the defendant. If the State determines that the defendant should be civilly committed, the head of the facility may transfer the defendant upon expiration of his sentence to the proper State authorities. In essence, the defendant is about to be released and because of his condition the State has instituted civil commitment procedures as it would against any other mentally ill citizen. On the other hand, if there is no State to which the defendant has sufficient ties, then the head of the facility must proceed pursuant to this section. In addition, if the State determines that the defendant is not in need of further hospitalization, the head of the facility may attempt commitment pursuant to this section since "suitable arrangements . . . are not otherwise available." Of course, any determination in a State proceeding is proper evidence at the hearing held under subsection (d) of this section.

If suitable arrangements for the custody and care of the defendant are not otherwise available, the head of the facility must transmit to the court for the district in which the defendant is confined a certificate stating that the defendant is presently suffering from a mental disease or defect as a result of which his release would create a substantial danger to himself or to the person or property of another, and that suitable arrangements for the custody and care of the defendant are not otherwise available. The filing of the certificate stays the release of the defendant until completion of the procedures contained in this subsection. Upon receipt of the certificate, the court must order that a hearing be held to determine whether the defendant is presently suffering from a mental disease or defect as a result of which his release would create a substantial danger to himself or to the person or property of others.

Subsection (b) provides for psychiatric examination, subsection (c) for reports by the pshychiatrists, and subsection (d) provides for a hearing. These subsections are similar to others contained in this subchapter and the comments for those parallel subsections apply here. Subsection (e) provides that if, after the hearing, the court finds by a preponderance of the evidence that the defendant is presently suffering from a mental disease or defect as a result of which his release would create a substantial danger to himself or to the person or property of another, the court must commit the defendant to the custody of the Attorney General, who must hospitalize the defendant for treatment in a suitable mental hospital or other facility.

Under the provisions of subsection (f), the commitment is to continue until the defendant has recovered from his mental disease or defect to such an extent that his release would no longer create a po

Section 3617.

tential danger to himself or to the person or property of another, or until other suitable arrangements have been made for the custody and care of the defendant, whichever occurs first. In most instances, the "other suitable arrangements" will be civil commitment. Accordingly, subsection (f) specifically authorizes the Attorney General to apply for the civil commitment, pursuant to State law, of a defendant committed to the custody of the Attorney General under this section. If the defendant has recovered or if other suitable arrangements have been made for the custody and care of the defendant, the Attorney General must file with the committing court a certificate of termination of the commitment and the reason therefore. No further action of the court is required once the Attorney General terminates the commitment. This procedure tracks that of 18 U.S.C. 4248.

Subsection (g) dealing with annual reports by the mental hospital concerning a defendant committed under section 3616, and subsection (h) dealing with the continuing availability of habeas corpus relief track similar subsections contained in other sections of this subchapter.

SECTION 3617. GENERAL PROVISIONS FOR SUBCHAPTER B

This section contains the definition of insanity which is also set forth in section 522 and which is discussed in the part of this report covering that section.

In addition, this section authorizes the Attorney General to contract for non-Federal facilities in order to hospitalize for treatment persons committed to his custody pursuant to this subchapter.

Section 3702.

CHAPTER 37.-PRETRIAL AND TRIAL PROCEDURE, EVIDENCE, AND APPELLATE REVIEW

This chapter consists of three subchapters. Subchapter A concerns the method for establishment of the rules governing pretrial and trial procedure in Federal criminal cases. Subchapter B sets forth the method of establishing the rules governing the admissibility of evidence in Federal criminal cases. In addition to authorizing the Supreme Court to prescribe amendments to the Federal Rules of Evidence, subchapter B contains specific provisions concerning the admissibility of confessions, admissibility of eyewitness testimony, and the admissibility of evidence in sentencing proceedings. Subchapter C establishes the method for providing the rules governing appellate review and, in addition, sets forth specific appellate review procedures. In addition to the normal appellate review of legal issues, subchapter C, for the first time, provides for appellate review of certain sentences.

SUBCHAPTER A. PRETRIAL AND TRIAL PROCEDURE

Sections 3701-3702)

This subchapter outlines the statutory basis for the Supreme Court's rulemaking power in regard to pretrial and trial procedure.

SECTION 3701. PRETRIAL AND TRIAL PROCEDURE

Section 3701 is introductory only. It merely sets forth the sources for rules governing pretrial and trial procedure in criminal cases in the district courts of the United States and before United States magistrates. Such rules are found in the provisions of title 18, the Federal Rules of Criminal Procedure, and such other rules as the Supreme Court may prescribe.

SECTION 3702. RULEMAKING AUTHORITY OF SUPREME COURT FOR RULES OF CRIMINAL PROCEDURE

This section is based upon 18 U.S.C. 3771. Subsection (a) gives the Supreme Court authority to prescribe amendments to the Federal Rules of Criminal Procedure and otherwise to prescribe rules of pleading, practice, and procedure with respect to proceedings prior to, including, and relating to the entry of judgment in criminal cases