presumptively innocent man to either a mental hospital or a federal prison for an evaluation and whether the government can do that without making any showing whatsoever that this commitment will meaningfully improve the accuracy of the evaluation that it seeks to undertake your honour's we do not dispute that the united states can and has to evalu and attempt to restore mr mccallum that's not the issue in this case this case is about involuntary commitment and whether at some point before in voluntarily committing a person there must be a substantive showing that the commitment will be at the very least hopeful in this case there's been no such showing so the district court's or no supreme court case and i'll talk about jackson versus indiana in a nd but there is absolutely no supreme court case or the supreme court has ever said that a person can be involuntarily committed without some showing that the commitment is going to be necessary to further an important government interest there's no dispute here the government has an important interest in prosecuting mr mccown but that's not enough the nd reason your honour's is even if it were an oath even if we could conceive that in this case it might be helpful mr mccown has been given no procedure to investigate that and to so that no one can use the holding in that case the supreme court said we hold that a person charged with a crime was committed solely on account of zinc passages like mr recount cannot be held more then a reasonable period of time they said regional period of time the government emphasizes that but they also said the commitment had to be necessary to determine whether there's a substantial probability that he will attain capacity in the foreseeable future now when the supreme court uses that were necessary they put in there for a reason they could have written that opinion without using the word necessary and to exclude that word necessary and say that the government can commit a person if they think it would be a nice idea or if they have any rational basis to believe that it would be hopeful that number one to disregard the holding of jackson the part of jackson that the supreme court characterizes it's holding but number two it violates several other supreme court precedents including every single precedent that we have been able to find dealing with involuntary commitment it violates versus louisiana where the supreme court said that insanity acquit he must be released was determined either that he's no longer mentally ill or that he's not a danger short term fine meant in order to assure that the trial is a fair one and that there's a correct diagnosis of the mental health issue so that the necessity is to guarantee a fair trial and have a correct diagnosis minimis exception to due process deprivations now that case dealt with good time credits for federal inmates so we're talking about incarceration periods of potentially weeks or even less and this court said no before you take someone's good time credits there's no de minimus exception you need to give them due process and we say that the t case no reply please so the argument that well this is kind of a minor deprivation number one it's not it's not a minor deprivation this is that what the supreme court called the tech versus jones a massive curtailment of liberty and the supreme court has never said that you can voluntarily commit someone without examining whether it's necessary if it's for a short period of time and in fact that's the opposite of what this court's and teague why isn't it necessary in order to determine the mental health situation and determine whether it's appropriate  finally we've stated a study in which five hundred and eighty nine dollars texas defendants were examined they were all found incompetent to stand trial they were all attempted to be restored an outpatient basis seventy five percent of them were restored without being committed now that should tell the court that there are many cases where you can accomplish the government's goal in this case the government's goal for this evaluation without committing a person there's absolutely nothing not only is there nothing in the record there's nothing in the science there's nothing in the literature there's literally nothing to support and determination that this cannot be done patient basis ready on the other  over a year now it's been two years since he's been trying to almost two years and two years that he's been day right in so nothing's happening and he's just living at home that's right he's living at home and not had any further evaluation and that process he goes to mental health treatment court ordered mental health treatment not for this purpose right exactly right exactly right most experts haven't come in and done in this case out or anything like that as far as i know no your honor certainly when we get back to the district court he will need to be evaluated again because he's not been evaluated for this purpose even determine whether he's still know what the statute requires the statute also requires that the commitment be necessary to determine whether the person can be restored so in this case if the bureau of prisons is following statute m to go off to wherever they send him and this is an important aspect of the government's argues well the government says once he's committed to our custody he has no rights at all about where we send him what we do with him whether he goes to a prison or a hospital we we decide all that he has no process and no rights regardless of what our needs are so he could go to the bureau of prisons which is where he'll go he could interview with someone for two hours which is what has already happened and that person could reach a conclusion which two experts have already done once that happens your honour's he's supposed to be either released or we're supposed to think about whether an additional period is necessary now the fact that under the statute that could happen in two hours should give this court pa about whether we need to commit him at all in that you're honors this really brings me to my procedural due process point because there certainly is a substantive right not to be committed for no reason i don't even understand the government to argue that it could commit mr mccown for no reason merely because he's incomp taking for granted that that right exists it's a right of the highest order and then the matthews versus eldridge factors process needs to be provided with respect to that right because there is significant chance that someone could be committed fact that necessary piece was absent and the study that we cited from texas demonstrates that those five hundred and eighty nine dollars people seventy five percent of whom would have unnecessarily gone to a mental institution under the regime that challenge and the reason is because mr mccown is on pretrial release certainly the this whole analysis would be much different for a person who because they were dangerous or because they were a flight risk had already been committed to the attorney general's custody so this really isn't as appl challenge in a narrow one there have been some circuit court cases discussing this type of circumstance but i think probably fewer than twenty cases have been cited in the thirty plus years that this mandatory commitment regime has been in effect so this doesn't seem to come up assume he's not a danger even if it says that he threatened to sue the security person allegedly absolutely and in fact there's no argument in this case that the government seeks to hold him because dangerous that the sole basis advance for the government holding him and for judge white's order committing him was for this evaluation of you are i think it's also important to think about the case of v tech versus jones and in terms of our procedural due process argument  in that case the supreme court held that an inmate a sentenced inmate in federal prison was entitled to procedural due process before being committed to a mental hospital and one of the important things that the court held constitutionally had to be considered in that context was whether the prison could provide mental adequate mental health care so even for a person who is literally in prison which obviously was from a county free right now but even for a person who's in prison that additional commitment requires additional process related to the necessity of doing it and in your honour's i also want to talk about this court's opinion in in re new ch in that case this court held that before a district court could commit an inmate or soon to defend it to evaluate an insanity defense the district court had to consider whether or not there were available local alternatives and in fact consider the deprivation of liberty that would be worked upon the person now the government attempts to distinguish newchurch by saying well in this case you know the district court really doesn't have a decision to make about whether to commit the person the statute requires the district court to give the person the custody of the person to the bureau of prisons but you are certainly the statute itself arguably allows the bureau of prisons to rehabilitate the person into a value with them on an outpatient basis and to the extent the statute gives that discretion to the bureau to take away a person's liberty or to let them remain free that is a very important agency decision one might say the most important agency decision that agency could ever meet and the bureau needs to provide some type of process for it to establish that it needs to commit the person deciding your honor that's a decision that we have to make in this case but really under the statute it goes to the bureau under the statute the bureau makes the initial decision and certainly we think that would be covered by a review in the district court that decide oh you can do that forty eight hours because it only takes two hours of the exam and so we can get in there one day and do the thing the next day getting processed in to they get to decide on duration and every issue or is that up to the court so i think cell provides us the united states versus cell which dealt with the government's ability to medicate somebody in order to restore them give us a really good look roadmap for this in so there was an administrative hearing where the d o b said these are the months four months ok i'm sorry four months no we don't have to say we're holding the whole time because we couldn't get the right experts in and we're still about you waiting in arguing about it and no no your honor that's a problem the limited time period should be affirmed every federal circuit there are sixty six dollars federal circuits have addressed the exact arguments for the nearly exact arguments that mr mccown is making a rejected them this court has said many times that it is cherry to create a circuit split mr mccown has not even acknowledged in his briefing the numerous circuit court decisions in district court decisions that have been ruled against his position other cases dealt with that there would be some court supervision in normally you know about the medication issue that there's a whole process for that and there's no process here there is a whole process  no discretion you must commit him to the custody of the attorney general statute says for hospitalization the time period cannot exceed four months unless there are district court findings you have to go back to the district court to extend that time period bought some four months where as you know if they were going to medicate somebody you have to go back each time you're going to do some change in medication and this to mccown not be forcibly medicated without further that's and that's where in the saying we're we're have a lot of process for medication yes just but not any process for keeping someone four months versus four days because the supreme court said in jackson that in the state once a defendant is determined to be incompetent the state may hold that person for further evaluation for a reasonable period of time as is necessary to determine restore  necessary language modifies not the commitment itself but the restore ability to reasonable time period so if it's true it could be under this statute the cap is four months it could be less it could be more we don't know how long it's going to take to evaluate and sign them but why is it that they get complete discretion to determine what is the reasonable time period it's saying that when anything under four months is reasonable at all to automatically without looking specifically for each person what are really set not that four months is necessarily reasonable it's going to depend on each individual case if they can't but knowledge that can they i mean that's what we're while that's what he's challenging here but he can't come in and shows congress chose to delegate to the attorney general the authority to determine the risk or ability issue and we are relying on the expertise of the medical experts in this  cited indicate that a defendant who is referred under this statute four thousand one hundred and forty two d is going to be referred not to a prison for placement in the general population he's going to be referred to a medical referral could he come back and say you picked this placement for my client it's a completely unsuitable placement be you know you're wrong and judge district court please give some that that kind of an argument requiring an additional hearing to determine his suitability of additional treatment or earth this will hospitalization turns the statute on its head so he gives all the power to the b o p and they get term and whether four months is appropriate or one day is appropriate and where the placement in and whether outpatient or inpatient all the discretion is with the b o p s and there's no court supervisory authority is that every federal circuit court of appeals to address this statute has said that that is permissible because jackson says that the state may hold the defendant for a reasonable period of time but not to exceed  reasonable period time the supreme court didn't even give a count on the length of time that he could be held and subsequently that the court has referred to for example in the fish a case it characterized the jackson holding procedures for civil commitment and so forth but it doesn't matter whether a court believes that four months is two medical experts are going to determine whether or not four months is too long if particular deference to the reasonable choices that congress has made and the court may use common sense when assessing that joan specifically rejected in the ceci of empirical evidence to support congress's choice as long as it appeared appears to be reasonable ok so in this case we're talking and as applied challenge yes we know in this case that the person has been living on his own for almost two years and we don't have a whole series of he's had these episodes and been arrested and they had to call the hospital or we have no history of him he's been as far as i can tell on the record in that time that's that's correct but two to two he has not committed any any violent acts during this time period does not necessarily mean he's not dangerous it didn't the bat judge make a finding that he was not dangerous in order to allow him to live on and allowed him to threats was because he was he perceived social security as denying him a benefit which he was then subsequently granted so the trigger for his stress has been removed but dr harris said that he's emotionally volatile and he could you know he can go off at any time i'm not suggesting he will or that he happens but we don't know that and so what the what the courts have recognized is that under forty to forty one feet we've got the opinions of dr harris and dr  they contradict each other or there to conflict i'm sorry they conflict as to whether or not he is restorable in the media foreseeable future so on as applied basis we've got conflicting evidence so it's reasonable to require further hospitalization for a more careful and thorough evaluation which is what the st the th and the th circuit's have all held to be a reasonable justification for the statutory ok you know in a hospitalized setting you're going to have the ability to observe mr mccown in any defendant under this statute on a twenty four hour basis you're going to be able to observe him in a controlled environment you're going to be able to observe his interaction not with just one doctor who's conducting an hour long evaluation but with all other staff members nurses situation and his diagnosis and prognosis this in this promotes not just the government's interest in bringing prosecutions what we do know as to the benefits of the defendant in ensuring he's not tried if he is incompetent and society's interest in making sure that trials are fair and so congress's scheme balances very carefully the the competing interests they said you have this initial hearing to determine the competency you've got a subsequent evaluative period during which the period cannot be extended that the cap is what protects the defendant but it cannot be extended without additional procedures it cannot that we cannot force a medication upon the defendant without additional procedures and that is going to be further hearings after the evaluation period if he's found to be competent and restored goes back to the district court for further hearings if he's found incapable of being restored it goes back to the district court for further hearings so to suggest of a district court has absolutely no role here is is not correct there there is a there's a no overarching scheme and we're looking at a very narrow horse in of it and the courts have said that this is constitution which involves forced medication as i've argued in my brief that is a much more invasive intrusion upon a person the supreme court was concerned there with potentially grade side effects of the psychotropic medication that could interfere with the fairness of the trial and actually cause death and so it makes sense that we're going to happen to show procedures and then the other one that does not involve indefinite confinement i salerno and that's bail but that's sort of different on a different interests and and salerno even recognize that there are times as i argued here this is one of those times where the public's interests or the societal interest outweighs the individual interest  the fact that other states may permit patient evaluation does not establish the constitutional floor as as we all know the federal constitution is is a floor and so the question the fundamental question here is is it reasonable for congress to require additional hospitalization and evaluation after a defendant has been found to be incompetent after a full hearing and i submit to to competency on an outpatient basis but read the end of that study they also recommend further study to confirm whether or not inpatient versus outpatient should be the st choice and again the fact that some states may permit it doesn't mean that experts have given their opinions the experts opinions conflict but also as the source of the th circuit held in strong this argument that it's not necessary presumes an answer to the question  state prisoner was being transferred from prison after conviction to a mental hospital he cheated he challenge whether or not he was mentally ill we don't have that there's no dispute here that mr mccown is is incompetent but the prisoner invited said i'm not mentally ill and i should not be going to a mental health facility and that decision was made not by the district court after a hearing but by a doctor with no no procedures and then the supreme court was animated invited by two other concerns one being the mandatory behavioral modification treatment that went along with the the transfer and the stigma associated with being new church in the in the show our decision new church in the national statutory provision one that this court took pains to explain involve permissive language not mandatory language in the legislative history of that per particular provision a new church expressed a congressional and congress a legislative preference for patient treatment here we don't have that we have the mandatory language but this court a new church said because the statute does not require the hospitalization we are not expressing opinion in opinion as to whether congress could constitutionally required it's just that the statute doesn't not matter that the the hospitalisation the evidence suggests that the hospitalization would would be would be not necessary because we don't know that until it does it cap and it off here they have the language of the statute that there's no remedy in case they have done an unsuitable it's because congress made the made the legislative choice to require hospitalization hospitalization plain meaning being in patient evaluation and all courts to address the question have recognized that inpatient hospitalization is a most logical and effective way to the i mean do you carry that to the ins of the or if they put him in hypothetically angola in the general population are you saying that there would be no remedy anywhere in any court instead of putting him in a proper hospital that that would be an extreme situation and i don't know the answer to that question some some circuits i think one of the circuits did question for example whether or not it would go that far as it has a date i think judge our audience identified a serious problem with the statute if this discretion has been committed to the bureau as a government suggests that it has to put a person wherever they want  to restore the new whatever manner it's certainly some predict prevention process must be provided and we know the predestination must be provided from a couple of places the st is the supreme court said  versus birch that pre deprivation process is required if possible before involuntary commitment that's the holding of that case now the government apparently construe the statute to require commitment in all cases i don't know that the court needs to read the statute that way in fact the th circuit in an unpublished decision i believe last week or the which week before in nino's said we're actually not deciding whether the bureau could restore someone or evaluate them on an outpatient basis we certainly believe that the option at some point in the process to consider outpatient alternatives is necessary to a constitutional construction of the statute because contrary to the government's argument we're not here on rational basis review today and i hope that the court will read the georgia supreme court's opinion in carver's a state because that opinion very elegantly discusses the short case and the other circuit cases upon which the government is relying upon that was a different statute anyway that with the georgia statute was different but the holding of the case is really that mandatory commitment for the purposes of mental health evaluation of an incompetent defense a competent incompetent defendant violate substance of due process that's the holding of the carcase and the way that the court got there was in analyzing these federal cases that the government talks about would it is one it's the only one that says that and there are others that say the opposite but in terms of its attention in its analysis of the constitute the supreme court constitutional cases and of these circuit court constitutional cases car is very persuasive one of the things that it says is why would we conclude what is there in the record or in our in the literature or anywhere to enable us to conclude that in all cases sending someone to a mental hospital is going to meaningfully aid their evaluation and what is there in this case to reach such a conclusion your honor the government says well congress could have reasonably decided this how and in any event it's been thirty five years since congress passed this law and things may have changed certainly the testimony of the experts in this case the changes in the laws throughout the country and the studies that have been the court suggest that things have changed significantly and that there is good reason to believe that it's possible for the government to accomplish its objective of evaluating in restoring mr mccown with out the massive curtailment of liberty i keep saying that those are my words that's what the supreme court called this the massive curtailment of liberty that accompanies involuntary mental health commitment now the government says you know this really isn't that bad of a of a curtailment of liberty because you've already been it doesn't mean that he's dangerous it doesn't mean that he's troublesome it doesn't mean that he can't get this case to trial it just means that right now he needs some mental evaluation treatment and there's been nothing in this case to support the conclusion that he should go to hospital for that i want to make another point the government talked about balancing the public's interest in bring a person to trial versus the individual interest that absolutely needs to happen in this case as a matter of constitutional law we're not here on a rational basis case your honour's that this is a really strict scrutiny case there needs to be tailoring of what the government is trying to do to the important objective that it has there needs to be some tailoring that's all they were