Greenwood v. United States – Oral Argument – January 25, 1956 (Part 1)

Media for Greenwood v. United States

Audio Transcription for Oral Argument – January 25, 1956 (Part 2) in Greenwood v. United States

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Earl Warren:

Number 460, Earl P. Greenwood versus United States of America.

Mr. Burrell.

William J. Burrell:

May it please the Court.

Mr. Solicitor General.

I represent in this case Mr. Earl P. Greenwood, who is the petitioner here on a writ of certiorari to the United States Court of Appeals for the Eighth Circuit to review a decision.

The Eighth Circuit reviewed and affirmed an order of the United States District Court for the Western District of Missouri which was entered on July 30th, 1954, committing your petitioner to the custody of the Attorney General of the United States upon certain terms and conditions which will be referred to in detail later.

I was appointed by the Court, District Court in Kansas City by Judge Ridge.

The Greenwood had no funds.

He has now been in the federal custody for over three years and he is insane and incompetent and still is unable to stand trial on the charges pending against him.

Briefly, the questions before this Court, the first question is whether or not the provisions of Sections 4244 and 4246, 4247 and 4248 of Title 18 of the United States Code which are set out in detail in the appendix to both of the briefs whether or not these provisions provide for the continued confinement of an accused charged with a federal crime who has found to be, we’ll say, permanently insane so that it is not likely that he will be able to stand trial on the charges against him.

In other words, if those are the circumstances, do these sections, properly interpreted, provide for the continued commitment of such an accused by the federal government?

The second question is if these do — these sections under these circumstances do provide for the continued commitment of such a person, are they unconstitutional as violating the Tenth Amendment reserving to the State’s powers not delegated to the Federal Government or is petitioner perhaps being deprived of his liberty without due process of law?

Earl Warren:

Mr. Burrell, do you —

William J. Burrell:

Yes, sir?

Earl Warren:

— you used the word “permanent disability.”

Is there — is there any — is that issue before us, do we have to go to that far?

William J. Burrell:

As far as —

Earl Warren:

Does the record in this case show that this man is permanently insane?

William J. Burrell:

I may — I think I have overstated myself, Your Honor.

Earl Warren:

Frankly, yes.

William J. Burrell:

And that the record will support this conclusion in this case that the petitioner’s condition is such that it is not likely that he will ever be tried at least in the foreseeable future.

I think the question of actual permanency is a difficult thing but as far as the psychiatrist can tell at this time, it is not likely that he will be able to stand trial on the charges that are pending against him.

Felix Frankfurter:

Is the Government — is the Government retaining?

Has an indictment filed yet?

William J. Burrell:

There has been an indictment —

Felix Frankfurter:

The Government —

William J. Burrell:

— yes, Your Honor.

Felix Frankfurter:

— retaining the indictment?

William J. Burrell:

The indictment has — has —

Felix Frankfurter:

(Voice Overlap) —

William J. Burrell:

— is remaining pending.

And then the final question is the question of whether or not a finding which was made in this case that the petitioner will probably endanger the safety of the officers, the property or other interest of the United States is supported by substantial evidence and whether or not such a condition or finding is the proper basis for the continued confinement of the petitioner.

Now, the facts are that in November of 1952, Greenwood was arrested under an indictment charging him with the armed robbery of a federal post office in Kansas City, Missouri.

He was arrested in November of 1952.

The alleged crime was committed on October the 22nd of 1952, less than a month or approximately a month before his arrest.

Greenwood was then transferred to the southern — the Eastern Division of the Southern District — I believe maybe the Northern District of Ohio under Rule 20 and when he came up before this Ohio District Court, a question arose as to his mental condition.

And in December of 1952, he was examined by a psychiatrist in Cleveland, Ohio and this was only two months after the crime was allegedly committed and then that psychiatrist examined him the following month in January of 1953 and found him to be incompetent, unable to understand proceedings against him, at least unable to properly assist his counsel.

So the United States District Judge there in Cleveland, Ohio then referred the — the case back to the Court in Kansas City, Missouri.

At that time, then approximately in February of 1953, the matter came up before Judge Reeves and he was then informed of the background of petitioner’s mental disturbances at least what had happened and what had been found by the Court in Ohio.

And petitioner was then committed to the — at least sent to the United States Medical Center for Federal Prisoners at Springfield, Missouri.

That’s where he is now and that’s where he has been really for almost three years.

He was committed there by the Court for observation as to his mental condition.

His condition is of course important to the understanding of this case and therefore I just like to refer briefly to the various reports which were made by the neuropsychiatric staff there of the Medical Center for Federal Prisoners at Springfield.

The first report was made, it’s in page 64 of the record.

As to the final conclusions, the Court came to the conclusion that the petitioner was suffering from schizophrenia as an acute and undifferentiated type.

He was unable properly to choose between right and wrong.

He was motivated by insane delusions and that he was unable to properly understand the nature of the charges against him and to cooperate with counsel in his defense, a long history there is given in connection with that report.

And then it appears exactly why the Greenwood was at the medical center for such a continued length of time is not clear.

But at any rate, our next report is in January of 1954, a report of the neuropsychiatric staff on page 65 of the record in which they agreed that the patient remain psychotic and incompetent.

They agree that the patient’s illness was chronic, of longstanding and the — the prognosis for recovery was poor.

The staff recommended that the committing court be advised that our finding indicates that it is unlikely that this subject will regain his sanity in the near future.

The staff recommended consideration to transferring the subject to the — a state hospital in the State of his residence.

His residence has been Cleveland, Ohio.

I don’t think there is any dispute here that that is the State of Greenwood’s residence.

He was born there.

He still has a family there.

After this report was made, there was another matter came up before the Court thereon February 1st, 1954 — February 2nd and then order was made by Judge Ridge there at that time found on page 12 of the record in which it referred to the report of the staff that I have just read in which the Court made the statement substantially that it was now determined that the defendant is so mentally defective that he will probably never be able to stand trial on the charges pending against him.

The Court suggested further opinion be secured from the staff at Springfield as to whether or not the conditions which will be discussed later set forth in Section 4247 of Title 18 of the Code existed.

Those conditions of whether or not the accused is — might — will probably endanger the safety of the property, officers or other interests of the United States.

And the Court suggested a further proceeding at that time might be had with reference to a finding as to those conditions, but in the meantime and pursuant to the suggestion of the Court which was in the final paragraph of the opinion, the Court suggested that perhaps Greenwood could be transferred to a hospital or to the proper authorities in the State of his residence having in mind that his mental condition was such that he would likely not be tried.

William J. Burrell:

And so pursuant to that suggestion, the federal authorities did release Greenwood to the authorities in the State of Ohio.

That occurred approximately in May of 1954.

Unfortunately, the record is not as clear as we would like to have it as to just what transpired in Ohio.

However, it is — it is clear that he came up before the probate court there, that he was in the receiving hospital there at Cleveland, Ohio, that one psychiatrist examined him and apparently thought that he was sane.

At any rate it is clear that the Ohio authorities, and that thereafter he had come before the probate court, concluded that it was safe at least to release him.

And so he was released and as soon as he was released, he was arrested by the federal authorities, returned to Kansas City, Missouri and it was at that time that I was appointed to represent him.

The Court suggested that a hearing should be held under Section 4244 to determine Greenwood’s competency to stand trial.

Two psychiatrists were appointed by the Court, Greenwood was referred back to Springfield, Missouri for further examination by the psychiatrist and on July 30th — or rather July 15, 1954, there was a hearing with reference to the mental competency of the petitioner to stand trial.

The two psychiatrists appointed by the Court, who had only examined Greenwood approximately an hour, concluded that he was sane in their opinion.

But Dr. Smith, who was the Chief of the Neuropsychiatric Staff at Springfield, whose staff had just examined him, who had observed him some 15 or 16 months while he was at Springfield, testified that the petitioner was still insane, he was incompetent and the opinions of the staff from time to time that I had been referred to were — were admitted in evidence and it was the unanimous opinion of that staff that at that time, which was in July of 1954, that petitioner was insane and couldn’t stand trial.

And so the Court made the order of July 30th, 1954, which is the order that is appealed from and it is the order which is set forth on page 17 to 18 of the record.

The Court found that petitioner was insane and mentally incompetent to stand trial.

The Court further found that if released he would — will probably or would probably endanger the safety of the officers, property or other interests of the United States.

The Court found that suitable arrangements were not available for the care and custody of Greenwood other than by commitment to the Attorney General.

These findings are findings which are set out in Section 4247 of the statute in question.

Based upon those findings, Greenwood was committed to the custody of the Attorney General either until his mental competency is restored or until it is improved to such an extent that he will not endanger the safety of the officers, the property or other interests of the United States or until suitable arrangements are made — are available in the State of his residence for his care and custody at least that —

Hugo L. Black:

What’s — what’s the special significance of the use of the word officers?

William J. Burrell:

I don’t know that I understand that, Your Honor.

They referred to the officers, property or other interests.

Hugo L. Black:

Was there some indication that he had threatened the officers, the United States officers (Voice Overlap) —

William J. Burrell:

Oh, there was — in fact to the contrary, there was not.

I will come to that in — in the facts, there was not that — the use of the word officers well I think was to comply with the — with the statute —

Hugo L. Black:

(Voice Overlap) —

William J. Burrell:

— that’s the statutory language.

Hugo L. Black:

Yes.

William J. Burrell:

That was used there.

And so at this — it is this order that I have just referred to in which the findings were made pursuant to Section 4247 and in which the commitment was made pursuant to Section 4248, it is this order that is appealed from and that this Court is now reviewing.

It might be advisable briefly to refer to the sections of the statute in question.

The first one is Section 4244, found on page 33 of our brief, which provides for the — a hearing by the Court in the event that there is some suggestion made that an accused is insane and can’t stand trial.

There was a hearing in our case under Section 4244.

William J. Burrell:

Section 4246, found on page 35 of our brief, provides for a commitment in the event of a determination of insanity or a commitment to the custody of the Attorney General until the mental competency of the petitioner is restored or the accused so that he can stand trial or until the charges against him are disposed off according to law.

And then there is a further part of Section 4246 in which it is stated that if the condition specified in 4247 exist which I assume means — are those provisions referring to potential dangerousness and the lack of arrangements elsewhere for the accused.

If those conditions exist then the statute says the commitment shall be governed by Section 4248.

Harold Burton:

If you’re successful in what you’re trying to do for him, then what happens to him?

William J. Burrell:

Your Honor, it is our position that he should, under these circumstances, be released to the proper authorities in Ohio.

Harold Burton:

And that was done once and — and at that time they let him out?

William J. Burrell:

At that time they let him out and if — it — I think it is something within Ohio’s jurisdiction and if — it depends upon what they want to do with him at that time.

Harold Burton:

But as soon as that happens, why then you pick him up again for trial.

That’s what happened the other time and — and if he is sane why he is subject to trial so that — if they get him out then normal course will probably be that — that he go to trial.

William J. Burrell:

Well, that could conceivably happen, Your Honor.

It’s just a question there that — of course I would think there would have to be some limit to re-arresting him and — and sending him back and forth.

But it is our position that this man is a sick person and insane and therefore it is his own state that has a jurisdiction to care for him and whether they want to put him in an institution or whether they want to release him to — to his parents for trial period is up to the State of Ohio.

Harold Burton:

It is your obligation as his attorney sees it when you get him out from this federal care and turn him over to Ohio.

William J. Burrell:

That’s my — that would be my opinion, yes.

Of course, I think there is a distinction that Ohio could — he could be released by Ohio and still not be able to stand trial.

He can be incompetent and still it is necessarily true that he has to be confined as he is now.

Now, the second — and that I think we have completed reviewing statutes and so we come to our first point that the statutes do not authorize the continued commitment of an accused who is so insane that it will — it is likely that he will never will be able to stand trial on the charges against him.

In this connection, we would like to refer to the case of Wells versus Attorney General which is a Court of Appeals case for the Tenth Circuit.

Now, there are quotations from this case on page 12 to 14 of the brief.

Now, in this case, an accused who was insane was committed pursuant to the provisions of Section 4246 until he was — the charges against him were disposed off according to law or until the — his condition improved so that he could be tried.

And he filed a petition for habeas corpus in which he contended that he was permanently insane or was likely that he would never be tried that he was therefore being held possibly for life for the sole reason that his mental condition was such that he — he couldn’t stand trial and therefore that the right of the — of the Federal Government to continue to imprison him ceased when it appeared unlikely that they could ever try him.

And that matter came up before the Tenth Circuit and the Court was of the opinion that the petition for habeas corpus should be granted, that the care of the insane, that the custody of those that are mentally ill is a power which has not been delegated to the United States.

It is a power which has been reserved to the States and that when it appeared that a person would not likely be tried then it was up to the United States to release him because the reason for detaining him no longer existed.

And the Court was of the opinion that the statute should not be construed to provide for the continued detention of such a person who was suffering from such a mental illness and the statute was therefore so construed, the — the Court referred to the capacity of the States in their character as parens patriae in caring for those that were ill.

William O. Douglas:

You’re referring to the second sentence in 4246?

William J. Burrell:

Well, this particular commitment was not under the second sentence.

It was under the first sentence.

I will point out to the Court —

William O. Douglas:

You’re talking about the construction of the statute.

Are you are talking about the second — second sentence?

William J. Burrell:

Well, it is — it is our position, Your Honor, that either under the first or the second sentence of 4246, the same principles do apply.

That if the man is so insane that he will likely never be tried, that he should be released to —

William O. Douglas:

As a matter of statutory construction?

William J. Burrell:

That’s correct, Your Honor.

Now, there is this that I —

Stanley Reed:

But you have 4248.

William J. Burrell:

We have 4248.

Stanley Reed:

Which — which is — is that the governing section over 4246 as to what (Voice Overlap) —

William J. Burrell:

Well, you have to go right through from 4246 to 4247 to 4248, they’re all locked together.

I will say this that this is, as far as I know, the only case wherein there has been a specific finding that the conditions in 4247 exist and wherein there has been a commitment under 4248.

And it is the Government’s contention and I think it’s something that we — I don’t — I want to —

Stanley Reed:

I don’t understand what would be a commitment under 4248.

William J. Burrell:

Pardon, Your Honor?

Stanley Reed:

I don’t understand what would be a commitment under 4248.

William J. Burrell:

Well, it is a commitment after a finding of mental incompetency under 4246.

Stanley Reed:

Or 47.

William J. Burrell:

And after a finding under 4247 that the accused will likely — will probably endanger the safety of the officers.

Stanley Reed:

But that’s what we have here, isn’t it?

William J. Burrell:

That’s what we have here.

But the length of the term has been governed by 4248.

Stanley Reed:

And what does it say?

His commitment shall run until the sanity shall be restored.

William J. Burrell:

That’s correct, Your Honor, or until the mental condition of the person has so improved.

Stanley Reed:

Well, does that mean that it — as far as the statute is concerned that means that he must stay there forever if he never recovers.

William J. Burrell:

As far as the — as the specific wording of the statute, that is correct.

There is nothing in the statute that —

Stanley Reed:

The problem we have here is whether the Federal Government can enact such a statute.

William J. Burrell:

I — I think that is correct, but I was merely pointing out that in the interpretation of, we’ll say, the first section of Section 4246, wherein again there is no reference to the question of the permanency of the — of the illness of the accused, the Tenth Circuit and the Ninth Circuit have interpreted that to only permit the confinement of a person who’s temporarily insane.

And in order — they have so construed it so that it would be constitutional.

And it —

Stanley Reed:

Construed it so in an instance where actually the man was permanently insane or had there been any findings yet?

Did they ever make a finding that a person is permanently insane?

William J. Burrell:

Well, they — they remanded in both cases in the Wells case and in the Higgins case, the Wells case in the Tenth Circuit and the Higgins case in the Ninth Circuit.

The case was — it was remanded to the District Court for a finding as to whether or not the person was permanently insane or would likely be able to strand trial with the direction that if he wouldn’t likely be able to stand trial then in — in the near — in a reasonable time, he should be released.

That was the finding.

Felix Frankfurter:

I’m — I’m trying to find, Mr. Burrell, your application for habeas corpus is acquitted if I tell you what I’m curious about.

William J. Burrell:

Yes, Your Honor.

Felix Frankfurter:

You didn’t ask that he be relieved on condition and that — that he be tried or in the form of reasonable time for trial that he’d be released.

You didn’t put the Government the necessity of saying we can’t try him (Voice Overlap) —

William J. Burrell:

Well, he was —

Felix Frankfurter:

— where there’s no likely that we could try him.

William J. Burrell:

He was — the Government was going to try him and at that time I moved to have him examined —

Felix Frankfurter:

Yes.

William J. Burrell:

— and then the Court found him insane and made this order.

Stanley Reed:

You — you never —

Felix Frankfurter:

And the order —

Stanley Reed:

— had a habeas corpus, did you?

William J. Burrell:

Well, we haven’t filed a habeas corpus.

Felix Frankfurter:

Well, this is just on the motion.

William J. Burrell:

This is a direct appeal — originally they are direct appeal from the order of July 30th.

Felix Frankfurter:

And that order was based on a motion to do what?

William J. Burrell:

That order was based —

Felix Frankfurter:

What’s the —

William J. Burrell:

— on a hearing pursuant to Section 4244.

There had been a suggestion that the accused wasn’t able to stand trial and therefore pursuant to Section 4244, the Court appointed a psychiatrist and there was a hearing.

And after the hearing, the Court made these findings and an order.

Felix Frankfurter:

Where — where’s the District Court’s judgments?

William J. Burrell:

It — it’s —

Felix Frankfurter:

What kind of a judgment have we got in here?

William J. Burrell:

We have a — the — the District Court’s judgment is set out on page 17, is the order and memorandum committing the defendant to the U.S. Medical Center, there entered on July 30th, 1954.

Felix Frankfurter:

(Inaudible) there’s this provision, until the sanity of mental competency under — which shows (Inaudible)

William J. Burrell:

That’s correct —

Felix Frankfurter:

(Voice Overlap) —

William J. Burrell:

— Your Honor.

That is right.

Felix Frankfurter:

I take it’s — it’s — firstly, the indictment by the United States and not brought to trial, an habeas corpus proceeding may be pursued asking the Government to try the fellow or release him because to keep — detain a man indefinitely bars the constitutional provision for —

William J. Burrell:

Petty trial.

Felix Frankfurter:

— petty trial and (Inaudible) you now filed a habeas corpus for his release on the provision that the Government doesn’t need to trial.

Then they would have to say, “Well, we can’t try him now because he is unfit to be tried.”

They would then have to say, “But we hope one of these days we could try him.”

In short, the question that the Chief Justice has put to you shortly after you opened, this case doesn’t present on this record that create that issue of a case where the person is taken under detention first in the arrest of — by the — by the United States Marshal under a valid indictment, under an appropriate statute and it turns out that he is mentally incapable of being put to trial then it turns out further that — that in encompass, it can be determined, it is determined that he never will be put to trial and the Government, in order to keep things off the books that have no business to be there, now process the indictment that this man is a danger if let loose, the State of Ohio or some other state wouldn’t take him and then the statute comes into operation.

We haven’t got that case here, have we?

William J. Burrell:

Oh, I — I think we —

Felix Frankfurter:

Now, I’d ask you, that — Solicitor General will tell us that is your version.

William J. Burrell:

I think we have, Your Honor, in this respect that in — his commitment here is directly under the various sections of the statute —

Felix Frankfurter:

Yes.

William J. Burrell:

— and it is our position that if he is properly committed under these sections that these sections are unconstitutional and —

Felix Frankfurter:

Do you hold that it would be unconstitutional if the psychiatric reports for — reported high probability or probability of recovery within the not too remote kind, would you hold the statute was then unconstitutional?

William J. Burrell:

No, I would not, Your Honor.

Felix Frankfurter:

Now, we’re —

William J. Burrell:

I would not, Your Honor.

Felix Frankfurter:

Then we’re — then we are in a situation where there is not only no probability that he will be able to be put on trial, but the probability is that he move.

William J. Burrell:

That is correct, Your Honor, and of course the facts on their their face now, he has been down there three — three years now.

Felix Frankfurter:

Well, there is the — tend to live with it.

And then they (Inaudible)

William J. Burrell:

That’s right.

Felix Frankfurter:

Well, those are — so that — the indictments are still hanging over him.

I suppose on its face we have constitutionally whether it’s constitutional law, a different argument if there is still potential out to put to trial somebody properly indicted, although it may take years for that power to be exercised but in the mean time he can’t be allowed out on bail or otherwise allowed out because he’d be a menace to society.

We haven’t got that case here, have we or have we?

William J. Burrell:

Well, it’s —

Felix Frankfurter:

This would be a very different case.

William J. Burrell:

It’s — it’s the Government’s contention here as I understand it that the basis for — I think they more or less agree that the basis for confining the petitioner here is his is so-called potential dangerousness.

Felix Frankfurter:

Yes, but that isn’t — the case that I quote where it would be — where he’d be out of the question, humanly out of the question that he ever would be put to trial under a valid indictment and the Government in the interest of having — having the records cleared of (Inaudible) now process the indictment so as not to have an indictment outstanding that never will come into operation.

William J. Burrell:

Well, under —

Felix Frankfurter:

So that he is detained — so that he is detained, not as a potential defendant by the Government of the United States, but he is detained solely and exclusively because he would be a menace if left at large and the State doesn’t make it over, we haven’t got that case here, have we?

William J. Burrell:

I think we have because the terms — the terms of his commitment as set forth in 4248 are not in any way related to the pendency of the charges against him.

There is nothing there under the terms of his commitment which will allow him to be released if the charges against him are dismissed.

In fact, he’s being treated.

This 4247 mainly applies to a prisoner who has served his sentence completely and the Government doesn’t want to release him and therefore they make a finding that he is potentially dangerous —

Felix Frankfurter:

We haven’t got that case here, that’s under — that’s another case.

William J. Burrell:

He hasn’t served his sentence, no.

Felix Frankfurter:

No, but we haven’t got — if that still clear in the case in bringing out the difficulties, I think one would be confronted with if we did have it here, namely, if a man is sentenced to five years, served his five years, suppose the sentence that he got and ordinarily the prison gates would be open, they are not open because he would be a menace to society to let him out and the state authority say you’ve got a new pleading, we haven’t got that case, isn’t it?

William J. Burrell:

No, we haven’t got that, but we do have a case —

Felix Frankfurter:

And we — and we haven’t got the legal question that would — that that was raised, have we?

William J. Burrell:

But we do have the case, Your Honor, where if the charges against him are dismissed, he still is confined.

Felix Frankfurter:

But have we got a case in here?

William J. Burrell:

Yes, sir.

Yes, we do, Your Honor.

Felix Frankfurter:

We haven’t got it.

I —

William J. Burrell:

Because there is nothing in — in his order of commitment which allows him to be released if the charges against him were dismissed.

Felix Frankfurter:

Very well then — then that comes into operation, the hypothetical case I put before you would try in whatever this you may say, habeas corpus say, my client would be put to trial or he should be released and the Government would then have to (Inaudible), they would say, well we are detaining him (Inaudible)

They — they say that, just that one thing.

But if they say that he has no defense, then there is no forecast, no respectable forecast that he ever will have.

For practical purposes we might dismiss the indictment.

We can’t release your client because of the mental status he’s in.

We haven’t got that case here either.

William J. Burrell:

Well, not exactly.

No, Your Honor.

Stanley Reed:

You — you’ve got a finding of what, the indefinite confinement?

William J. Burrell:

There is no specific —

Stanley Reed:

They would probably require indefinite hospitalization.

William J. Burrell:

There is no specific finding in this order —

Stanley Reed:

(Voice Overlap) that there is a finding as I read it that they said his prognosis were recovered, that was before and he will require indefinite hospitalization.

William J. Burrell:

That’s — that’s correct.

Stanley Reed:

What you have is an indefinite hospitalization.

William J. Burrell:

That is right, Your Honor.

Earl Warren:

And there were at least two psychiatrists who testified that he was insane — that he was sane.

William J. Burrell:

That is correct.

Earl Warren:

Is that right?

So it isn’t — and the Ohio authorities determined that he was sane, so it isn’t one of those conclusive cases of permanent insanity even if we can say that any insanity is — is permanent.

William J. Burrell:

I would — I would say that is correct except that I would like to point out those two psychiatrists who thought he was sane there in Kansas City has only examined him an hour —

Earl Warren:

Yes.

William J. Burrell:

— and very obviously, the Court that heard the testimony didn’t —

Earl Warren:

Yes.

William J. Burrell:

— didn’t believe that — didn’t believe it was of much weight.

Earl Warren:

But the point that I make, Mr. Burrell, is that there is no indication here that the Court considers this man as being permanently and incurably insane, is it?

They left — they left it open.

William J. Burrell:

Not to that extreme extent —

Earl Warren:

Yes, they say —

William J. Burrell:

— that’s correct.

Earl Warren:

— that he’s a very poor risk for cure and so forth and that he must have indefinite hospitalization but beyond that they do not go —

William J. Burrell:

That is correct, Your Honor.

Now, there are a number of cases cited in the brief the — as to our second point, it is that if we construe these statutes as authorizing the continued commitment of your petitioner that they are unconstitutional as being in violation of the Tenth Amendment and in violation of the Due Process Clause of the Fifth Amendment.

Now, Judge Duncan in the District Court there in Kansas City, Missouri in Craig versus Steele and Dixon versus Steele, cited on pages 19 and 21 of the brief, was substantially of the opinion that the statutes did provide for such a continued confinement was an invasion of the rights of the State to care for the insane and therefore in this respect as applied to a man who wasn’t just temporarily insane, that the statutes were unconstitutional.

Stanley Reed:

Well, are there more degrees of insanity than temporary and permanent, more degrees of the instance of insanity?

William J. Burrell:

Well, I — I’m not enough of an expert to say, Your Honor.

I do believe it is true that it is difficult for a psychiatrist to predict very definitely totally — total permanent insanity.

Stanley Reed:

Well, I’m — I’m thinking the question as I understand it, it was raised.

It’d be one thing if we knew and had a holding and a ruling that this man was permanently and uncurably insane.

Stanley Reed:

Now, is that what — you’re not presenting that case, you’re presenting a case that —

William J. Burrell:

No.

Stanley Reed:

— you said of indefinite character and may probably will last for several years.

William J. Burrell:

That is correct, Your Honor.

Stanley Reed:

Perhaps many years.

William J. Burrell:

And perhaps for life.

Stanley Reed:

And perhaps for life.

Now, it’s under those circumstances that you say that the Federal Government has no power to protect the public and to keep the man ready for trial.

Earl Warren:

You many answer that after the recess.

William J. Burrell:

Thank you, Your Honor.