reform act this practice makes no sense under contemporary standards the automatic detention of all defendants down in holland and to stand trial is unnecessary as we know them successful outpatient programs in arizona  so does a hybrid of those guarantees and the th amendment and the rehabilitation at any even american bar association standards and i understand judge to your your concern on but this statute was passed in if that promise made no findings on this there were not hearings on whether our patient would be good enough or not because our patient restorations them please wasn't a satisfaction in my reading at you know i think there were maybe a couple of pilot programs in south and a couple of states back then but this was not something that was really on the radar it wasn't really on the radar at the time this court decided strong it's only been in the last ten to fifteen it seems to me you either have to go back to the congress to get the statute amended or convince the department of justice that the attorney general said exercises discretion in a different oath i do i do want to move on to talking about the constitutional issues that quickly to address your point which is a very good morning and if we aren't successful here we intend to do just as things on you know given the circumstances of the last couple of years there really hasn't been an opportunity to pursue this change in congress has had a hard time doing things like keeping the government open so there hasn't been an opportunity to change that but certainly i take your height and we do understand that if we lose the legal challenge it's a policy issue and we think we have the much better argument on policy as you mentioned to try that ah we also maintain very strongly that this practice i allays the well there can be no doubt about that and because it's a fundamental right constitutional analysis requires detention to be the least restrictive means of meeting the government's objective mean there's a big difference here we're talking about the the state's interest in seeing to it that the defendant understands the nature of the proceedings and is able to assist counsel with her defense and two mental health professionals have now examined her and the court has now entered a finding that she is currently not competent to stand trial and that's very different from the type of decisions that are made under the bail reform act where essentially you're arguing factors of danger to the community and whether or not there are suitable alternatives to incarcerate the defendant to ensure that they're there for trial here we've got a a legal and a medical challenge and the law provides that once the court makes the determination if there's a deficiency a mental deficiency that needs to be addressed then the law commands that the person be committed to a suitable institution where he or she will get evaluation by mental health professionals and hopefully come up with a restoration and i guess i'm having a hard time understanding why i should look to the bail reform act and declare that since the insanity act is different from the bail reform act of the violation of equal protection i just basis you know maybe once a week or every other day or whatever it is and that that is part and parcel of the evaluation that it played a prison mental health facility where the person is they are individual laboratories they get to experiment in different ways doesn't make it a constitutional equal protection while as you know that's a very minor part of our argument our argument is that the constitutional standards for opinion of two evaluating psychologists or psychiatrists that this individual is suffering from a mental ailment that makes her not competent to stand trial and i guess i go back to my earlier concern that that's a very different type of a concern than whether or not somebody should be released on bail well your honor one of those evaluators d doctors can evaluate this issue and the court of finding based on facts presented by the doctor as to whether al qaeda is appropriate and we know that it's not going to be appropriate in all his it's not going to be appropriate for defend all would be would have been but the a court that listened to both experts and disagreed with documents folder well your honor the problem is the case brought in and really most of the case law in th area deals with the question of non restore ability strong really focused on that and so did all the federal cases on four thousand two hundred and forty one proceeding strong but you know the courts have held that it doesn't matter if there's absolutely no chance that you can be restored you still have to the government needs don't take u n for eight months and i made you send in a v o p facility we're not trying to find that at all we have two doctors one said she might possibly be restorable one said she wasn't so we are conceding that she's going to have some treatment but we maintain strongly that it should be outpatient and i she and the strong who are did not address which is also a medical decision about whether if if if you if the if you will be outpatient route and your client was not restored to health what would happen to be going to that period well your honor if the least restrictive means it is if our interpretation of the f the constitution would require that to be the end of it the government doesn't get a nd shot is that gosh outpacing didn't didn't work but we thought from the very beginning that something more aggressive would work but the government doesn't do best record shop doesn't well the government could could could have another expert evaluating see if they still have a different opinion that she's don't be restored that happens in outpatient just like it doesn't and asian the outpatient providers will ask for an extension of they think there's a substantial likelihood that it would be fruitful so you basically use the same procedure just on an admission to his basis rather than an inpatient but again you have to keep in mind my client is charged with a relatively minor nonviolent island only her codefendant got eight months she's a very good candidate for a sentence that short or even probation so the notion of putting her into a b o p is so empty or extended period of time is really really detrimental to her and detrimental to relieve the interest as well and as we know and as you may know it or you may not know restoration and b o p typically takes eight months or longer because of the staffing shortage transported and you know certainly my client can stuff report to the prison but i don't see likely does not have the means to do that and under the way view he operates now she'll have to sit in jail for months getting no treatment  and seventy two it did not purport to reach this issue it didn't by its own terms is that at the very least there can be indefinite detention based on the competency to stand trial it didn't reach the issue of so many decisions that were important now to me whether you look at those under the pretrial detention room right which we discussed or under the involuntary commitment room regret it did not pass muster which i've explained in the briefs and that is not something stronger dressed equal protection has the really the same standards as due process that we're talking about discrimination and my  being punished in a way that other defendant released under the bill reform act are not being punished and even though these groups are not dead plants they are similar enough and please burn the supreme court's decision makes that clear we also contend that a hybrid guarantee under bearden over the bow also requires our results the rehabilitation act the th amendment and we do think that the statute can comprehensive and you argue mirrors ways in which you think the statute is unconstitutional or violates other statutes it's kind of a the kitchen sink approach right everything in the kitchen  so what's your best argument and which ones you think is the strongest argument to say that that this statute should is in bahrain well you know it's interesting because all of the arguments apply a very very similar standards so they all work in our direction substantive due process of procedural due process the equal protection particularly comparing the two groups of those who were released on to develop format and allowed to remain at liberty and those who are are released and then down incompetent that's a very strong case so i think they're all very strong arguments around though your answer is all of them not there's not one argument that you view as your leading argument thank your honor may please the court shelley clemens the u s attorney's office for the district of arizona this court for the district court's order remanded the defendant to the custody of the attorney general for inpatient treatment and evaluation for the purposes of restoration t attorney general and the attorney general shall then hospitalized the defendant in a transfer treatment in a suitable facility congress chose not to define these particular words as such this court looks to the ordinary common meanings of the shell denotes a requirement commit means to place officially in custody in confinement and hospitalized means to place in a hospital for treatment care of sedation the defendant's argument that as is necessary somehow gives th court or gives district court the ability to only place somebody had been considered medically necessary is not supported by the grammatical structure of the speech or killer act the language mandating the person  g s mandate that they place the defendant in a suitable hospital bacillus he or hospitalized the finn is suitable silesian section d as is necessary languages then indeed one which talks about the time frame that is for four months to the defendant substantive due process argument that case that argument is foreclosed by this court argument or this court's ruling in us the strong and the district court in this case did not err in relying on us to be strong or jackson be indiana contrary the defendants claim the court in strong conducted its own independent analysis of the due process issue that is it weighed the rights of the individual against the liberty is true interest at stake and in doing so it found that the statue did not  due process one because the commitment was for a limited duration and two because the detention bore a reasonable relation to the purpose for which the individual was committed in this case the overarching purpose of fo when someone is potentially not restorable based on the initial assessment the miracles of modern medical science might actually come up with a way to restore somebody because they've noted the government have both a compelling legitimate interest in proceeding to trial in a timely manner on a case for criminal charges have been brought there is a constitutionally essential interest that we not go to trial or how the defendant plead guilty who is incompetent to stand trial in this particular instance that the infringement which is limited strikes troy to four months and can be only extended by further due process with the cord help to limit any potential that poses any has to tional problems well i think we have to wait and see if that actually happens at this point the district court issued an order that the defendant did not have to report until a bed was available thereby trying to alleviate any issues where she would in fact be just sitting and waiting and nd of all if that doesn't fact occur she then has a process she can raise with the court to gag our back and for the court to figure out what we need to do to make sure that she is not detained unnecessarily so in this case the just regressed to determine that she did not pose a danger to herself or others and she's at liberty in the community but what if they had they the court decided that the person could be dangerous trial there's no reason the lace in between the detention in the jail and waiting for the to get to the facility they're not being treated at that point however the courts in that instance provide to defend it with process with the ability to go back to the court and because the lay has been justified by the particular circumstances in that case but i think your honour's question goes to kind of i'm a bigger issue the defendant argues that this is seems to argue that this is only really an issue because the defendants on pretty harley's but wouldn't the same issues be at play if she is has been detained i mean we're talking about moving her from one to solidity to another in another state to get treatment the issues don't seem to jive there because sure she's being detained or would be detained in an instance either as a flight risk or danger community but the government still has the same overarching need to get a more thorough and accurate diagnosis than we've had in the past on this particular instance we know at this point the defendant had to outpatient evaluation and neither doctor could agree on the diagnosis the severity of her injury well i think your are definitely right that congress recognized that there there is going to be some delay in getting a person to be restored to competency it's not something that's going to happen with one do that with a doctor i've certainly not something that's going to happen very quickly on an outpatient basis where they're meeting intermittently with a doctor as opposed to being in an inpatient facility where they're going to be evaluated and monitor constantly for twenty four hour period so congress that under their power to to deal to to work with the mentally ill who have been charged and are called to stand trial or insane but they have that authority to issue certain rules and regulations in regard to that so there trial issue there but as far as the other definitions provided by defense counsel st of all medicare definition of hospitalization in there at the very beginning of their definition statute they say it's limited to this section and as for the may be that it can be interpreted broadly congress chose not to give the definitions so under this court's case we look to the standard definition but it is another thing we take statutes in context and there is another that section makes no sense if the defendant is not hospitalized in a facility and therefore in need to discharge and if congress had meant to require something less than inpatient treatment they would have said so they would have said either put as is necessary earlier in order to pretty windy or they would have said the defend it will be referred to treatment as ordered by the government as does is suitable they didn't do that because they were following the recommendations of the spring corn jacks indiana which did not have a problem the commitment itself but had a problem with the indefinite nature of it in jackson and the court noted that the government was arguing that the commitment was not indefinite and they said at that hour if that were actually true the ruling might have been different so the court is the issue is not with the commitment in cell further this particular statute provides plenty of due process for the tickler defendant to make sure that there's not an unjust deprivation of liberty there's a three part structure contained within this statute she cannot be committed without a finding by the court that she's incompetent which in this case was raised by her counsel she cannot be forcefully medicated unless there is further due process she cannot be held beyond the four month limitation alas they go back to the court and the court makes a finding that holding her a little longer will lead to a substantial cost probability that she could be restored within a reasonable time further she cannot be go back to trial be wrist be found economist in trial unless the government proves that she is now competent to stand trial and the court makes that finding this particular statute provides a lot of process to make sure there's no undue deprivation of liberty and looking at the nd part of the matthews the elders test to determine whether procedural due process is the met in this case there's the risk of any erroneous deprivation is seventy two very very small because the defendant has debilitated she's incompetent the government has to be elated that she's incompetent and the medical evidence supports that so there's no way that she has been is being sent for treatment  mproperly at this point in addition given the rd back to the government's history interest including our physical mister burns again we've already had two outpatient evaluations that could not agree as to certain  including whether she knew storable this point individually the government's fiscal burns are not met by having another patient evaluation in this particular case the defendant needs this long term and evaluation and treatment so we can determine whether or not she truly is restorable in regards to the equal protection argument as we've noted in our brief but i will go through this in detail the three groups of that have been at times identified she is not similarly situated with therefore under this she has not met her burden that's an initial burden she has to show that they're similarly situated and in this particular case none of the three groups that she shows that she raises the process is recently situated they're not in similar circumstances as to the defendant's hybrid argument the district court did not air and find a forty to forty one he does not violate some form of hybrid the process the supreme court has are in this court have already held that deprivation of liberty for any reason for any length of time is subject to due process protections which have already been addressed in strong as well as in other cases beren in j p n over still do talk about the fact that there's a convergence between due process in this matter the defendant is not being detained for purposes of bail she's being detained for another purpose other than lighter danger to the community and again congress can limit pretrial release in light of the government's interest in restoring defendant's competencies to the prosecution a candid move forward and also the overarching purpose of not the constitutionally essential interest of ensuring that somebody who is incompetent doesn't end up pleading guilty  argued should have been raised in a writ of habeas corpus in individual cases and the court found at that point the judicial economy didn't require that they go back and raise it separately but again they were raising a constitutional due process argument that could be raising both cases is a very specific criminal statute and therefore it would not be controlled by that i would also know the defendant sites on stead which talks about the improper institutionalizing of defendants st we are not seeking to the defendant we are seeking a very limited commitment for a very limited purpose but a constitutionally ascensions essential interest in having her restored to competency we are not seeking to help her with her dealing in the means would typically happens in an institutionalized setting there are many things that happen they will address the lingering although that doesn't really seem an issue in this case they will also determine whether medication would be appropriate which given the concerns that were raised and sell it would seem that would be more appropriate to do in an inpatient setting in an outpatient setting finally almost i did have a three part test the st part which of which is that somebody should be living outside the c institution st part being of the state's treatment professionals deemed outpatient to be appropriate the defendant has yet to be evaluated by the government's treatment officials which was what will happen when she goes to butner or to whatever facility is designated and they determine the the attorney general for determining the appropriate the philippi you would have to find in the rehabilitation act which is a statute of general construction the plan is a very specific regarding the competency in a criminal matter  and thirty four times a week on a regular basis for months so it is a very detailed evaluation and i have and i would just say that as i said before it's the federal system that's the outli r here the vast majority of states are not requiring that there are established outpatient programs constitutional standards from pretrial detention and involuntary commitment court arguments so does the rehab act and so do psychiatric evaluation and a determination as to whether or not your client is subject to restore ability before she's even been evaluated to confirm that she is in fact  easy for doctors to say look this defendant has this sort of mental health problem we think that she would be better treated in an operation is he as a doctor a pint in this case than the district court is it in good it that if she is restorable that she get restored so the criminal case can recommitting well yes your honor and he's competency programs typically take about you know four to eight months give or take and to be honest because you know he is has touched severe staffing shortages is likely to take longer there than it is in an outpatient program the abkhaz judge soto the judge in our case recognized the outpatient programs were very well out in arizona very clear that detention cannot occur unless it is necessary and all we are asking is for the district court to have to find by clear and convincing evidence that inpatient confinement is necessary to achieve the government's interests it is something that is done all the time and other states it is very workable and it would solve the problems here and redo again and i apologize that my co counsel was able to speak a lot more than i not just has to be possible and someone can be in a outpatient those facilities because when they are going to the outpatient treatment they go in and out of a facility and when that when they are done with the treatment they can be discharged determination will hear there is an error but of a presumption that once you're incompetent found incompetent to stand trial you have to have been patient treatment to achieve the government's objectives and that is just of carefully not true as we know wrong what happens