§ 4246. — Hospitalization of a person due for release but suffering from mental disease or defect.
[Laws in effect as of January 7, 2003]
[Document not affected by Public Laws enacted between
January 7, 2003 and December 19, 2003]
[CITE: 18USC4246]
TITLE 18--CRIMES AND CRIMINAL PROCEDURE
PART III--PRISONS AND PRISONERS
CHAPTER 313--OFFENDERS WITH MENTAL DISEASE OR DEFECT
Sec. 4246. Hospitalization of a person due for release but
suffering from mental disease or defect
(a) Institution of Proceeding.--If the director of a facility in
which a person is hospitalized certifies that a person in the custody of
the Bureau of Prisons whose sentence is about to expire, or who has been
committed to the custody of the Attorney General pursuant to section
4241(d), or against whom all criminal charges have been dismissed solely
for reasons related to the mental condition of the person, is presently
suffering from a mental disease or defect as a result of which his
release would create a substantial risk of bodily injury to another
person or serious damage to property of another, and that suitable
arrangements for State custody and care of the person are not available,
he shall transmit the certificate to the clerk of the court for the
district in which the person is confined. The clerk shall send a copy of
the certificate to the person, and to the attorney for the Government,
and, if the person was committed pursuant to section 4241(d), to the
clerk of the court that ordered the commitment. The court shall order a
hearing to determine whether the person is presently suffering from a
mental disease or defect as a result of which his release would create a
substantial risk of bodily injury to another person or serious damage to
property of another. A certificate filed under this subsection shall
stay the release of the person pending completion of procedures
contained in this section.
(b) Psychiatric or Psychological Examination and Report.--Prior to
the date of the hearing, the court may order that a psychiatric or
psychological examination of the defendant be conducted, and that a
psychiatric or psychological report be filed with the court, pursuant to
the provisions of section 4247(b) and (c).
(c) Hearing.--The hearing shall be conducted pursuant to the
provisions of section 4247(d).
(d) Determination and Disposition.--If, after the hearing, the court
finds by clear and convincing evidence that the person is presently
suffering from a mental disease or defect as a result of which his
release would create a substantial risk of bodily injury to another
person or serious damage to property of another, the court shall commit
the person to the custody of the Attorney General. The Attorney General
shall release the person to the appropriate official of the State in
which the person is domiciled or was tried if such State will assume
responsibility for his custody, care, and treatment. The Attorney
General shall make all reasonable efforts to cause such a State to
assume such responsibility. If, notwithstanding such efforts, neither
such State will assume such responsibility, the Attorney General shall
hospitalize the person for treatment in a suitable facility, until--
(1) such a State will assume such responsibility; or
(2) the person's mental condition is such that his release, or
his conditional release under a prescribed regimen of medical,
psychiatric, or psychological care or treatment would not create a
substantial risk of bodily injury to another person or serious
damage to property of another;
whichever is earlier. The Attorney General shall continue periodically
to exert all reasonable efforts to cause such a State to assume such
responsibility for the person's custody, care, and treatment.
(e) Discharge.--When the director of the facility in which a person
is hospitalized pursuant to subsection (d) determines that the person
has recovered from his mental disease or defect to such an extent that
his release would no longer create a substantial risk of bodily injury
to another person or serious damage to property of another, he shall
promptly file a certificate to that effect with the clerk of the court
that ordered the commitment. The clerk shall send a copy of the
certificate to the person's counsel and to the attorney for the
Government. The court shall order the discharge of the person or, on the
motion of the attorney for the Government or on its own motion, shall
hold a hearing, conducted pursuant to the provisions of section 4247(d),
to determine whether he should be released. If, after the hearing, the
court finds by a preponderance of the evidence that the person has
recovered from his mental disease or defect to such an extent that--
(1) his release would no longer create a substantial risk of
bodily injury to another person or serious damage to property of
another, the court shall order that he be immediately discharged; or
(2) his conditional release under a prescribed regimen of
medical, psychiatric, or psychological care or treatment would no
longer create a substantial risk of bodily injury to another person
or serious damage to property of another, the court shall--
(A) order that he be conditionally discharged under a
prescribed regimen of medical, psychiatric, or psychological
care or treatment that has been prepared for him, that has been
certified to the court as appropriate by the director of the
facility in which he is committed, and that has been found by
the court to be appropriate; and
(B) order, as an explicit condition of release, that he
comply with the prescribed regimen of medical, psychiatric, or
psychological care or treatment.
The court at any time may, after a hearing employing the same criteria,
modify or eliminate the regimen of medical, psychiatric, or
psychological care or treatment.
(f) Revocation of Conditional Discharge.--The director of a medical
facility responsible for administering a regimen imposed on a person
conditionally discharged under subsection (e) shall notify the Attorney
General and the court having jurisdiction over the person of any failure
of the person to comply with the regimen. Upon such notice, or upon
other probable cause to believe that the person has failed to comply
with the prescribed regimen of medical, psychiatric, or psychological
care or treatment, the person may be arrested, and, upon arrest, shall
be taken without unnecessary delay before the court having jurisdiction
over him. The court shall, after a hearing, determine whether the person
should be remanded to a suitable facility on the ground that, in light
of his failure to comply with the prescribed regimen of medical,
psychiatric, or psychological care or treatment, his continued release
would create a substantial risk of bodily injury to another person or
serious damage to property of another.
(g) Release to State of Certain Other Persons.--If the director of a
facility in which a person is hospitalized pursuant to this chapter
certifies to the Attorney General that a person, against whom all
charges have been dismissed for reasons not related to the mental
condition of the person, is presently suffering from a mental disease or
defect as a result of which his release would create a substantial risk
of bodily injury to another person or serious damage to property of
another, the Attorney General shall release the person to the
appropriate official of the State in which the person is domiciled or
was tried for the purpose of institution of State proceedings for civil
commitment. If neither such State will assume such responsibility, the
Attorney General shall release the person upon receipt of notice from
the State that it will not assume such responsibility, but not later
than ten days after certification by the director of the facility.
(h) Definition.--As used in this chapter the term ``State'' includes
the District of Columbia.
(Added Sept. 7, 1949, ch. 535, Sec. 1, 63 Stat. 687; amended Pub. L. 98-
473, title II, Sec. 403(a), Oct. 12, 1984, 98 Stat. 2062; Pub. L. 101-
647, title XXXV, Sec. 3599D, Nov. 29, 1990, 104 Stat. 4932; Pub. L. 105-
33, title XI, Sec. 11204(1), Aug. 5, 1997, 111 Stat. 739.)
Amendments
1997--Subsec. (a). Pub. L. 105-33, Sec. 11204(1)(A), inserted ``in
the custody of the Bureau of Prisons'' after ``certifies that a
person''.
Subsec. (h). Pub. L. 105-33, Sec. 11204(1)(B), added subsec. (h).
1990--Subsec. (g). Pub. L. 101-647 substituted ``chapter'' for
``subchapter''.
1984--Pub. L. 98-473 amended section generally, substituting
``Hospitalization of a person due for release but suffering from mental
disease or defect'' for ``Procedure upon finding of mental
incompetency'' in section catchline, and substituting provisions
relating to proceedings, examination and report, hearing, etc.,
regarding hospitalization of a person due for release but suffering from
mental disease or defect, for provisions relating to powers of the trial
court with respect to finding of mental incompetency of accused.
Effective Date of 1997 Amendment
Section 11721 of title XI of Pub. L. 105-33 provided that: ``Except
as otherwise provided in this title [enacting section 138 of former
Title 40, Public Buildings, Property, and Works, amending this section,
section 4247 of this title, section 1063 of Title 20, Education, section
225b of Title 24, Hospitals and Asylums, sections 6103 and 7213 of Title
26, Internal Revenue Code, sections 715 and 6501 of Title 31, Money and
Finance, sections 71f and 138 of former Title 40, and sections 13723 and
14407 of Title 42, The Public Health and Welfare, enacting provisions
set out as a note under section 6103 of Title 26, and amending
provisions set out as a note under section 4201 of this title], the
provisions of this title shall take effect on the later of October 1,
1997, or the day the District of Columbia Financial Responsibility and
Management Assistance Authority certifies that the financial plan and
budget for the District government for fiscal year 1998 meet the
requirements of section 201(c)(1) of the District of Columbia Financial
Responsibility and Management Assistance Act of 1995 [Pub. L. 104-8, 109
Stat. 108], as amended by this title [so certified Sept. 8, 1997].''
Section Referred to in Other Sections
This section is referred to in sections 3154, 3603, 4241, 4247 of
this title; title 10 section 876b.
