the morning my name is cradle rant with the federal public defender's office in the district of arizona and i represent the appellant kyle strong who is currently incarcerated at the butner medical facility and the jurisdiction of respectfully assert that it is not moot first of all as i indicated in my response brief the government didn't raise that particular issue the issue of general mood ness and the law now in terms of general mood disappears four months and this is not an appealable issue as in the detention contacts where everything is sped up that is not the case here so here we ask for expedited review and the court granted it but it did not have to do so we the commitment from both the just record and this court and that request was denied in most of the cases even the ones that have ruled against us on the merits either there has been a stay or the matter is been expedited and the courts have found that the issue is not people's freedom and mandatory commitment without any consideration of the individual circumstances and as far as i'm aware outside of the immigration context there is not a statute or rule anywhere in all of americans or as prudence th statute forty two forty one does you know how soon will you suggest that there has to be individualized determination before this kind of commitment and you had a hearing for the analysis focuses on the wrong step of the process it's a three step process and the first step is where the district court conducts a hearing that determines whether or not the defendant is incompetent by preponderance of the evidence and in most cases the defense the statute being on constitutional and that was the issue we addressed there is no individual determination whatsoever once the court any courting the entire country in the federal realm makes a determination that a defendant is incompetent that defendant figuratively becomes a member of that incompetent defendant group and everybody without accepting answer to the bureau of prisons and it leads to absurd results and let me give you the corner now example i want to take you back that's because the judge decided and i find it very difficult to buy your argument with all due respect that the district court did not make a determination as to restore ability that was the the argument that was the objection we are making is that the district court should make that determination and i would i would not be here today had the judge held a hearing and determine on his own that the defendant is is either restorable or there's some uncertainty as to whether reason restorable and it's in the best interest of everyone actually even had a hearing that's to compensate for status conferences where the judge was trying to flush out what the issues were and with all due respect to judge rosenblatt even expressed some confusion as to what the issues were in that then asked us to brief it and when we came back  court the last time it was a status conference and once we explained to the choice squarely where we stand the judge said well can i since we all are all in agreement that the defendant is incompetent and because i'm not going to grant you a hearing to determine whether or should and did revisit the issue but when i stood up and asked the judge to try to address whether or not it was a influenced by the commitment it said it was in fact one of the things he did but it can't say that it's crystal clear because it goes on to make the point and i think this is just my concern as well he reaches the conclusion that mr strong is a danger to the community and i read what he said and i can see it  for a firm so today i don't know that anything could possibly change because right now is subject to a commitment order if you can what was the deprivation today the deprivation is that the defendant is still facing criminal charges fit still under the jurisdiction of the district court and as i as i responded to judge fletcher earlier we haven't received the report back from butler yet in theory the report could come into our office tomorrow saying that we're not certain about the defendant's prognosis we're asking for more time we're asking for another four months in the statute permits that but he i have trouble with the deprivation because if right now it's subsequent to the hearing where the judge says ok he's still in the community at the time he drinks and the judge says that brings the curtain down he's a danger to the community he's in custody now before that order i understand the issue i understand the alleged deprivation but from that point on he's in custody whether it's it's it's at the federal hospital or whether it's someplace else he's in custody so what's the difference i guess i missed the issue a moment ago if we're talking about rightness then the reverse of what i said a moment ago could happen we could get a report tomorrow from butner concluding that the defendant is competent the district court is and is required by law to hold a hearing to determine whether or not it agrees with that assessment and let's assume the judge doesn't clean with that assessment now we have a changed factor that the court can consider at our request to terminate determining the defendant's release status one of the arguments by the government below is that because the defendant's incompetent that influenced his danger to the community and it seems clear to even though the media confusion as to why the judge ultimately detained the defendant as a detention hearing it does seem clear that he was influenced by the fact that the defendant was  i'm not sure that there's anything that's still alive to be appalled but only because the last thing our court did was to affirm the commitment so no matter what we do in till you get the report from butler in till the district court decides that's something different with regard to the competence issue he stuck to the commitment order well that's true but that with all due respect ignores the case law freedman for example from this court on the issue of smoothness relating to compe proceedings there is a reasonable likelihood that this defendant will say could face the same circumstances that he's facing now as dr berger from butler stated in the do hon case which i submitted to the court just prior to the argument right back to where we started speculative first he would have to be you have to succeed in your argument that he should be released from detention then some other incident would have to occur where they would want to revisit the question  clearly there is i'm still very far afield from where we are today well i grieve that there is speculation involved but there is a spectrum of speculation is it is it rank speculation or is it reasonable speculation and i suggest and in this case it's reasonable speculation given that if you look back at the circumstances of this defendant no criminal record but the allegation a finding by the prior doctors that he's unlikely to be a danger in the future  quo and as i said the court detain him not based on just that there i mean the court said in its own words that it was relying on his depending on how you view it is somebody ambiguous either the fact he was incompetent or the pending amendment now let's look at what's going to happen let's say the report says in sweden competent we agree he can't wish to he under from everything we see like kind of will say oh well i may have the right to appeal that issue but it's unclear as to what the district court would be required to do if they had but they're saying he's he's not competent or even that he is competent and then they just record concludes that he's still  about the end and we can speculate about what happens next but you know we're not ordinarily in the business of dealing with what ifs the case that we've been working on is a case that deals with the four months and the stand lutenist has the capable of or i mean frequently credit rating review but you've got the twist of having now a commitment order because the judge determined it was a danger to the community and whether or not the fact he was just unheard for butner eventually entered into it there's there's no way around the fact that he was taken into custody and nothing's going to change that until the facts a change in front of the just toward so what's left for us well i mean there's nothing left if i accept your honest premise eighty that held its connecticut state statute which was virtually identical to the federal statute unconstitutional citing jackson citing jackson v and indiana for the exact same reasons that i'm performing today that the basically was detained and put in a mental hospital without any individualized consideration you know that would not be correct we have a very serious dispute here over what happened in this case with the facts of the case are because first of all this of course pointed out he's been detained as a danger to the community and number two he's appealed to this court has found that that was appropriate number three he's the one who requests were not in dispute whether he's incompetent he's the one that requested a finding of incompetence he's the person that's been charge crime a very serious crime actually a life threatening one you know and he's a person today i guess that still search that he's not competent to stand trial and that the district court sort of he never will be can't be prosecuted for this crime or presumably for anything in the future if he's permanently incompetent you know in the in the district court agreed that this is a person by the preponderance of evidence was not competent to stand trial so for the most part w talking about we're not talking about a normal citizen that we're talking about a person that he's so severely impacted is unable to make rational choices that's what we're talking about let me break this in a couple of pieces i mean i understand the collection you put together but let me break out the danger to the community because that didn't happen that the terminations wasn't made at the time of incompetence that came a little bit later at the time it was  him as you say himself applied for that determination by the court he's not proclaiming i'm a danger to the community i'm incompetent you can be incompetent without being a danger certainly and indeed at that point the judge did not order him taken into custody he left him in place in the program he'd been in for some time pending being taken into the program being sent to to the butler some time later he drank the court determined that he was a danger to the community but let's hold out to the side for the moment i think the challenge being quite here is that the statute according to to the district court and i look at the statutes in the same thing does not appear to have any option if you're determined incompetent there's only one route to go and that route is up to four months that at butner there's no possibility of a community placement of continuing the program  community without a conviction on the underlying of facts in congress they automatically you're inside for four months yes and what you need to look at is was congress rational in this decision because that's of course what the statute says it's basically automatic at what the type of person that they're dealing with first of all the cases that we cited talked about the hospitalization in fleet beat the no friel in pharaoh's talk about a hospitalization would permit a more careful and accurate diagnosis for of course the spacing the serious decision so starting from that is that rational when you know that a hostile ization is going to lead to better treatment well next this is for the whole united states congress doing this so they're setting up a uniform policy uniform treatment all around the united states we don't have to rely on the competency of you know some state local or whatever medical system and whether it's going to be appropriately funded this year  rational when you're put in a hospital which is twenty four hour a day seven day a week care by a white group of professionals was to close to maybe seeing a doctor a couple times a week is that rational when you're in a place where they're able to observe your interactions all the time how you interact with other people and you're trying to make those determinations money let me pose the question this way because i take it you also take the position the statute is kind of one direction that says this is what's going to happen it doesn't leave the district court other options but suppose the individual involved is somebody who is perceived as being no threat whatsoever the community the offense that he's charged with is not one that involved the violence that we had here was  ling a false tax return but he's got severe mental problems and so he's incompetent not a danger incompetent the statute says you're going to be in custody for up to four months as part of our examination the rest potential restoration process and yet that's not necessary from a danger to the community perspective and he hasn't been convicted of anything yet and the court might well think you know he'd be better off if he stayed where he was paid with a community statute doesn't give the judge in the choice if there's no danger to the community is it proper for the statute to say no choice you've got to go to custody for four months yes it is and the reason why is look at the defendant that we're faced with we're faced with a defendant who's unable to make rational choices for himself still congress has made that they've made the choice of where you should be treated where they it's going to be the best chance for restoration  years are there and they asked for additional time so it's hard to say what's going to happen i don't know what's going to happen in this case and you know soon as we get back maybe they will ask for more time maybe they'll say he needs schooling i  don't know he came from a very remote area he's at least somewhat retarded this is a very remote area with the soon very early underperforming school so i don't you know maybe he just needs education i don't know but as a general matter there aren't any guidelines them hospitalized and i know the defense would like to call it incarceration because of course he doesn't want to be there so i suppose in some respects it is that they wanted him hospitalized because i feel that it's better treatment plans and i'm sure you  leave that's true and but that's exactly part of the reason why you want to hospitalized because you want to know besides what medications you're giving him how they're acting you want to make sure he's not taking something else and you want to you want to observe him this whole time you know and also forces him to take the restoration problem restoration program seriously when you're in an inpatient place you know by doing this by adopting the present hospital system to send  their congress was able to immediately use an existing system and one that's already has resources without setting up a completely new bureaucracy to you know cover somebody every place you know and when they passed  physically stated that they were changing the law so that it would be in accord with jackson versus indiana so clearly they were aware of the supreme court in trying to be in compliance you know and as i said you know congress congress was making a rational choice for people that really can't make rational choices for themselves you know the defendant concedes the government has a compelling interest in trying to restore him the confidence you know i don't think defendants necessarily i don't know about this defendant but the fairness do not necessarily have the single you know being read and being restored could probably get in stripping the interests particularly if it would if it's a severe crime so i think what it comes down to here is if you agree the society has and should have a compelling interest in restoring an attempt rehospitalization really is rational decision on the floor of congress you know and what's what you need to put it in context is what's going to be coming up the forty to forty six hearing you know they're going to put us to a heavy burden to show where there's restorable not restorable whether it's dangerous not dangerous where the case should be dismissed not dismissed and because of course you know their course is they want the case dismissed and what would happen if we don't have an evaluation and don't have individualized really closely individualized study now if i could address with this for just a moment you know that the defendant argues about others just could clearly happen to somebody else or released defendant being shipped off to butner certainly how about a release to stand in the middle of a of the finding of mental incompetence well if you look at the release statute it talks about those one of the things you can still center is one's mental status in the court did in fact  certainly this issue could come up and it was when the judge issued an issue order he was to report to butner himself and we made some determination to make sure that he would be able to change planes in dallas and all that sort of stuff to get the button and then after after a pretrial services filed well i think what happened she got kicked out of recovery homes and then pretrial services filed a petition to revoke is released and then the judge basically the difference was so you're still going to butner but the marshals are taking since rather than you're taking yourself so that's kind of the difference yes and there's a lot of cases where  you know that usually it's how often this has come up is whether you decide whether or not there's a lot of exceptions for them that was the mood in the stockroom tons of them in a lot of them really come down to is this the kind of thing that comes up all the time i don't think the part about getting revoked in the middle comes up all the time i think the other comes up all the time people on released getting some off the button or i think that that you know happens a lot and i guess the question is is that come within the exceptions to the treated locally by the state of arizona but the judge was prohibited from even considering that even if he was in custody so that is an issue i would also point out the two cases that i cite in my response with boy a grain case which is another circuit in the wood case which is from pending he was in custody not for not just for the commitment because he failed but because he also failed to appear in the wood case the defendant was being held in custody on a different order than the one that was being field in this that related to comp well and i would just want to say that it may not be assumed that confinement in the hospital is beneficial environmental therapy for off and that was from the  late chief judge david basil and that's what the government is saying is the case and the supreme court has said quote sometimes the grossest discrimination lie can lie in treating things that are different as though they were exactly alike and that's what the statute does we have different individuals different degrees of mental illness different interests at stake a defendant could be harmed by being sent off to fight in or about the court is prohibited from taking that into consideration in report is due by anyone so six months after his commitment to get the commitment is traditionally for four months and then there's a also a provision that under section forty two forty seven that lets the defense counsel ask the court to intervene where counsel believes that the committee is no longer progressing appropriately but it says no earlier than one hundred eighty days so this commitment to four months is a commitment for four months and that's how it's done in practice and there may be some cases that are less than that time has expired thank you