decided: June 1, 1982.
GOVERNMENT OF THE VIRGIN ISLANDS
DAYTON WALLACE, APPELLANT
ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN
Before Garth, Circuit Judge, Rosenn, Senior Circuit Judge, and Higginbotham, Circuit Judge.
Opinion OF THE COURT
Dayton Wallace, an insanity acquittee, appeals from an order entered February 26, 1981 by the District Court of the Virgin Islands terminating his conditional release from confinement and recommitting him to the custody of mental health officials.*fn1
In this appeal, Wallace does not challenge the propriety of his initial commitment or recommitment, but argues instead that the statute under which he was committed, V.I. Code Ann. tit. 5, § 3637 (1967), and the February 26 order violate the due process and equal protection guarantees of the United States Constitution and the Virgin Islands Revised Organic Act of 1954, 48 U.S.C. § 1561 (1976), by failing to provide adequate procedural protections against his being confined longer than necessary.
The district court, although rejecting Wallace's claims, ordered that counsel be appointed for Wallace and that hospital reports be furnished to the court every six months as to Wallace's mental condition. We affirm.
On August 26, 1969, Wallace stabbed his grandmother to death. On March 17, 1970, he was found not guilty of first-degree murder by reason of mental illness and was committed to St. Elizabeths Hospital in Washington, D.C., for restraint, treatment, and detention, not to be discharged until the district court "shall be satisfied that (Wallace) has regained his capacity for judgment, discretion and control of the conduct of his affairs and social relations." App. at 5.
On April 23, 1980, the district court granted Wallace a conditional release from St. Elizabeths Hospital. On September 5, 1980, the hospital recommended that Wallace be returned to his home community in St. Thomas, Virgin Islands, and that he be continued on conditional release status under the supervision of the Virgin Islands Department of Health. On September 25, 1980, following a sanity hearing held at the request of the Department of Health, the district court ordered Wallace's conditional release.
On February 19, 1981, at the request of the Government of the Virgin Islands, another sanity hearing was held. At this hearing, the court found that Wallace continued to suffer from mental illness, that he had regressed from the time of his conditional release on September 25, 1980, and that his present condition "constitute(d) a danger, possibly homicidal, to others." Id. at 13. The court rejected Wallace's claim that he was entitled to periodic hearings initiated by the court or prosecution to review his commitment. Id. at 38-48.
The district court did, however, advise Wallace that it would extend to his case the practice it had established of requiring periodic reports on the status of persons civilly committed, that these reports would be distributed to counsel, and that counsel could then take whatever steps he deemed necessary. Id. at 31, 46. On February 26, 1981, after the hearing to which we have referred above, the court entered an order recommitting Wallace to St. Elizabeths Hospital and requiring the Virgin Islands Commissioner of Health and the Administrator of the Hospital to provide the court with "a written report on the status of Dayton Wallace, no later than six months from the date of this Order, and every six months thereafter until further Order" of the court. Id. at 16. Wallace filed a notice of appeal from this order on March 6, 1981.
On August 4, 1981, subsequent to the filing of the instant appeal, the district court ordered that John E. Stout and Thomas D. Ireland, Wallace's counsel at trial and in the sanity hearings, "continue to represent defendant Dayton Wallace as co-counsel in any and all proceedings in connection herewith." Id. at 18.*fn2
The statute under which Wallace was committed, V.I. Code Ann. tit. 5, § 3637 (1967), provides that a person committed to a public institution following an acquittal of a criminal offense on the ground of mental illness is entitled to unconditional release upon certification by the head of the institution that the individual has recovered his sanity and will not be dangerous to himself or others. If the United States Attorney objects to release upon such a certification, the court must hold an evidentiary hearing to determine whether "such person has regained his capacity for judgment, discretion and control of the conduct of his affairs and social relations and will not in the reasonable future be dangerous to himself or others," and must order release if it so finds. The court, upon receipt of a release certification, may also elect to hold such a hearing sua sponte. The statute contains similar provisions for conditional release under supervision.*fn3 In addition, under the habeas corpus statute, V.I. Code Ann. tit. 5, §§ 1301 et seq. (1967), a person confined by reason of mental illness may initiate an action to establish his eligibility for release.
Section 3637 leaves the initiation of proceedings to change a mental patient's level of confinement up to the hospital superintendent, who is under no obligation to review periodically the patient's status. Thus, under that statute, an insanity acquittee who was no longer dangerous to himself or others could conceivably languish in a mental institution for months or years simply because hospital officials never bothered to re-evaluate his mental condition, erroneously misdiagnosed his mental illness as continuing, or deliberately refused to initiate judicial proceedings. It is for these reasons that Wallace contends section 3637 violates due process. He further argues that patient-initiated habeas corpus proceedings are inadequate to guard against unjustified confinement. Wallace asserts that due process requires periodic judicial review of the commitment of acquittees in the form of government-initiated recommitment hearings replete with the safeguards of an initial civil commitment hearing, at which the government bears the burden of proving the necessity for his continued confinement. See Fasulo v. Arafeh, 173 Conn. 473, 378 A.2d 553 (1977); State v. Fields, 77 N.J. 282, 390 A.2d 574 (1978).*fn4
This court, however, need not decide here whether section 3637, applied as written, would satisfy the due process concerns raised by Wallace. Even if we were to assume (and we do not so decide) that section 3637 is constitutionally defective because it fails to require review of the mental status of committed defendants on a regular basis, the fact remains that the February 26, 1981 order applicable to Wallace*fn5 essentially provided the safeguards that Wallace contends are required to satisfy due process considerations. In particular, that order required hospital officials to submit reports to the court on Wallace's condition every six months. These reports, the court said, would be forwarded to Wallace's counsel.
Although Wallace argues otherwise, the semi-annual reporting requirement imposed by the district court provides adequate assurance that changes in Wallace's need for confinement will not go unnoticed. By requiring hospital officials to submit reports on Wallace on a regular basis, the court thereby compels those authorities periodically to reconsider the necessity for Wallace's commitment. Moreover, the semi-annual reports, depending upon their substance, may well lead Wallace's counsel to request a hearing on the need for further confinement, or the court could order one sua sponte.*fn6
Wallace suggests, however, that periodic reports from hospital officials may not be free from error or offer a sufficiently reliable method of assessing his mental condition, and that formal periodic recommitment hearings are necessary. We cannot agree. We know of no constitutional prescription that requires that the full panoply of formal judicial procedures, including live psychiatric testimony,*fn7 be employed in periodic assessments of a committee's mental condition.*fn8
There appears to be, moreover, no empirical justification for assuming that the reports submitted pursuant to the February 26 order would contain erroneous information or would not trigger a request by the hospital for Wallace's release if that course were indicated. Indeed, the record in this case indicates the contrary. The hospital staff initiated Wallace's first conditional release and his return to the Virgin Islands. After the instant appeal was filed, the staff again successfully petitioned the court for Wallace's conditional release. See note 2 supra.*fn9
The district court, however, did not rely solely on conscientious monitoring by the hospital staff as a means of preventing unwarranted confinement. As previously noted, the court indicated that it would forward the hospital superintendent's semi-annual reports to Wallace's counsel so counsel could take such action as the reports indicate may be necessary. After the order under review here was entered, the district court entered an additional order, providing for counsel to "continue to represent defendant Dayton Wallace ... in any and all proceedings in connection herewith." App. at 18. We interpret this order as providing representation to include monitoring of Wallace's mental condition, review of all hospital reports submitted pursuant to the February 26 order, and the taking of any appropriate action in the event Wallace is again confined, including, if necessary, the procurement of psychiatric evaluations and the initiation of proceedings in the district court. We believe that the periodic reporting requirement, together with the appointment of counsel on a continuing basis, provide ample safeguards against any unwarranted confinement.*fn10 Thus, without addressing the constitutionality of V.I. Code Ann. tit. 5, § 3637-a matter we expressly do not decide-we are satisfied that Wallace's due process rights have not been violated.
Wallace argues that the release provisions of section 3637 deny him equal protection because they differ from the release provision applicable to involuntary civil commitments, V.I. Code Ann. tit. 19, § 723(e) (Supp.1982). See Fields, supra. Section 723(e), unlike section 3637, does provide for periodic judicial review:
A person committed under this section shall remain in the custody of the Division (of Mental Health, Alcoholism and Drug Dependency Services) for treatment for either a time certain established by the court or for an indefinite period, in which latter case the person's commitment shall be subjected to close periodic judicial scrutiny designed to protect said person from prolonged and unnecessary commitment.
This court need not decide whether a difference in review procedures for civil and criminal commitments would violate equal protection,*fn11 since in this case the February 26 order provided Wallace with the opportunity for comparable judicial scrutiny afforded persons civilly committed in the Virgin Islands. Again, the fact that Wallace might have been treated unequally under the literal terms of section 3637 does not diminish the fact that he was treated equally under the terms of the February 26 order.
As we have stated, in the context of this case we need not, and do not, pass on the constitutionality of section 3637. We have not addressed that question because it is clear that the district court's order of February 26, 1981 (as supplemented by its later order of August 4, 1981) accords to Wallace all the constitutional protection to which he is entitled.
The order of the district court dated February 26, 1981 will therefore be affirmed.