the honorable the judges of the united states court of appeals for the th circuit hearing determine whether or not the government has proven by clear and convincing evidence that the person is in fact sexually dangerous there is no exception in the statute by which the district court can forego that so scary hearing and determination simply because an individual incompetent and there is no provision either in which a certain category of incompetent individuals would also be except for that and the district court in this case somehow concluded that this does create such an exception and it concluded that based on the idea that he had the power to order an expert rip as i read the respondents brief in this case the respondent is essentially abandon that argument entirely recognizing as we point out in our opening brief that whether or not the district court has the power of hearing us or the individual's competency doesn't determine the question as to whether or not incompetency is actually a defense to the statute and so at that point with this case just reduces to his petitioner statutory argument that there some inherent idea that incompetency can be a defense in certain circumstances and i think our reply brief explains why if you try and locate that inherent right under the idea that the procedural protections in the statute won't be meaningful unless an individual competent that just doesn't make sense because simply showing that those procedural protections may not be quite as effective as they would be in a case where the individual is competent doesn't mean that those procedural protections are entirely devoid of all meaning more critically exactly right section four thousand two hundred and forty eight and a list three categories of individuals who are subject to certification under the statute and one of those categories is individuals who've been found mentally incompetent under section four thousand two hundred and forty one not precisely the case that we have here are further questions about the statutory argument i'll be happy to address them otherwise our proceed to the district courts alternative constitutional explaining why the district court's constitutional holding was wrong we think it's important to recognize that the supreme court has endorsed the idea that once an individual is found mentally incompetent to stand trial it is the case that you may then constitutionally commit that individual as a dangerous individual even if that individual has never actually stood trial and you can see that in the jackson vs indiana case where the court prudently cites the greenwood case which would have been twenty years earlier i guess the problem with that is in this case the the basis is underlyin mental health issues the slight mental retardation doesn't necessarily make him dangerous does it we are all that we're asking for in this case is the opportunity to show at a hearing that this individual meets the criteria for sexual dangerous ss the problem with what the district court did was that before we ever got to the here in the district court concluded that because the individual was mentally incompetent there would be no opportunity for the government even present its case and it dismissed the to dismiss the case if the case were remanded we would present our evidence and then the fact finder would have the opportunity to conclude either that he is or is not sexually dangerous and the concern on behalf of mr white is that he's is hampered essentially would have one perhaps two hands tied behind his back because he can't is in no position as a result of mental health to contest what is going to inherently be a very factual determination with respect to that st element in any event we're going to have a couple responses and i want to make sure i get all of them out st of all if that were his position it's hard to distinguish his position but between just restricting it to section four thousand two hundred and forty eight dollars cases where the st element is being contested and any civil commitment case there's always going to be some cases in which factual matter is it if indeed i mean you can imagine that if the government had proceeded against mr white under section four thousand two hundred and forty six dollars rather than under section four thousand two hundred and forty eight it seems very likely that one of his defenses would be all of these experts that think that i'm dangerous are wrong because they're basing their expert analysis on the assumption that i've committed all of these past infractions and so it seems very likely that under forty dollars to forty six dollars you would have a very similar kind of factual inquiry and it makes no sense to think that simply because it's a norm serious one i mean it that's the fundamental reason we don't put people on trial who are mentally incompetent but we have way in this circumstance we have a unique problem of determining whether somebody is mentally incompetent and based because he's mentally incompetent sexually dangerous and satisfying those elements in the hypothetical that i've been thinking of that troubles me about this and i'll ask both sides this is if you have a person who has committed rape three times he's mentally incompetent can't stand trial he's not stood trial in the three rape cases and the government proceeds under this statute to remove them from society because he's clearly whenever he gets a chance he rapes a woman and the answer i think is this is a very special circumstance where congress is just hea but we don't have the assistance of the defendant because he's mentally incompetent but we also know if we don't conduct a hearing and can find him he's going to write again and we can't try him for rape and so he has no convictions for r so what the government's going to have to do is to bring in the three women who are raped and prove it to the court that he did it as a factual matter by clear and convincing evidence that's the other aspect of congress put in the clear and convincing evidence so it's it's not a slam dunk it's a very difficult thing this is one of the diciest areas of the law to have the state can find somebody without the commission of a crime but it's probably necessary and it's a policy of congress and the question is does it withstand due process clause and if this one doesn't stand then almost all of them won't stand because the statute doesn't isn't based on whether there's a fact history that's at issue almost an exception is why we don't cry people who are insane when we don't it's a matter of due process we don't put people on trial who can help in their defense yet we're going to put a hearing here where he can help in this  but we have the problem is that's one of the elements of things he's insane and he's a danger to society if it's proved i think i think your honor is exactly right and that is important point which is that we do have a heavy burden and we do have to meet it and we have to be cautious in this area i think you know there's no question that there are procedural due process and rules and there are some things that the supreme court in this court has found inappropriate and there are other things that the supreme court in this court have found appropriate and in our view this who fall in the appropriate side of the line and one of the reasons why i think it's important to think about that is if you go back to this court's decision in comstock and i'm referring to the post re man comstock opinion from this court this court explained that in the context of a section fo case with the prior conduct element is doing in the statute is it's not something that is important because we want to punish someone for their past criminal behavior what it really is is it's part of the evidentiary burden that the government has to meet in order to show that someone  has mental a serious mental condition that causes them serious difficulty in or framing from committing sexually violent acts and once you accept the idea that all of the prior conduct element is doing is it's part of the evidentiary showing of mental illness and dangerous ss and then all of the idea that you can somehow single out this this unique element and say that it creates a different constitutional rule by the wayside and indeed that's what the court held in comstock he refused to create a special due process rule for entirely clear but there are some haitian of the opinion that he felt he fell within the very same set of facts that we're dealing with here and judge matson that opinion suggests that as you pointed out that we're not criminally pony's punishing someone but simply engaging in an evidentiary funny with respect to prior misconduct which doesn't even have to be criminal misconduct right under the terms of the statute i think that's exactly right and your honour's correct that there were five individuals at issue in the  the government eventually pursued a case under forty to forty six and then that individual was committed under forty to forty six my understanding is that he was then ultimately released but then  i guess it's appropriate to do this that mr white has a guardian ad litum appointed to the system and i get that i guess he as i understand it is a lawyer and can certainly be helpful to mr white but the reality is he h better position than than anyone to go back and historically determine or not the term and exactly what happened here is certainly no better position than white would be but for his mental health issues going to i think our point is not that the guardian is a perfect substitute for a comp an individual but rather that the guardian does provide an additional measure of protection and some of the things that the guardian can do that mr white might not be able to do without the guardian that the guardian can help make strategic decisions and can help the defense  help the respondents counsel decide how to prioritize various strategies in the case our overall point is not that a company an individual is equally effective as an advocate as an incompetent individual or point instead is that the procedural protections that congress created are sufficient for due process purposes particularly when you consider the government's very significant interest and not having to release someone who would be essentially unprosecutable if if we can meet our burden and that's again all that we're asking here is just the opportunity to this is the supreme court in matthews and again and then this report again and parren versus jr and then this corning i say sources baker all explain that when you think about the risk of error pronk of the mass use versus eldridge house the relevant task is not what is the risk of error and some unusual and unique case that you can imagine the question is are the procedures pretty good and reducing the risk of error in the mine run of cases and i think that's an important point because one of the things that the district where did in this case is emphasize how  usual it thought this case was and then it created special to process rules for this perceived to be unusual case and legally that's just not the right approach as a distinction from punishment putting somebody in jail for a turn the statute also has a review process or a regular review process doesn't it where is is custody and have to report his condition and also offer him an opportunity if things are going better file and he theoretically can get out at any time long as he can overcome the danger to society based on his mental illness you know that's exactly right and in many ways this case parallels united states versus greenwood with this report made the point that even if you thought that that individual was never going to regain mental competency he still didn't mean that commitment was permanent because the individual would have the opportunity to show that something had changed such that they were no longer dangerous and there was a very important protection i mean that the one limitation we have is the one the judge diaz is questioning about he can't help because of his incompetence but it's the very same incompetence and makes him dangerous to society if you carry your burden of proof and i think that was something that this court recognized in comstock but judge deborah as i recall and missed the laurel makes the same point is that given his particular circumstances that is that he's incompetent and suffers from two very serious mental health issues that one of the one of the bases for seeking discharge in a case like this is is being treated for the for the condition at issue and she makes the point and i think judge debra made the point as well that that's not a very likely scenario in this case given his mental health situation but is there any evidence in the record one way or the other on that issue you know i don't i'm not aware of evidence that says that he would be susceptible to treatment we do know that he was found and competent and that he was found on likely to ever regain that confidence and i see my time is up under you know is there is a question sure i will point out that again i think in many ways this case is like united states versus greenwood where the court the only point the court was making in greenwood was that even if you didn't think that the individual's mental condition would ever change whether or not that condition rendered him dangerous might be something that would change and and our only point is that this is not necessarily a permanent incarceration and we don't know what advances will be made in medicine and we don't know what will happen to his condition and all we know is that if you can show that he's not dangerous anymore  fact an element of the forty to forty eight statute incompetence is one mechanism by which a person could be subject to section forty two million four hundred and eighty four thousand two hundred and forty six but we know that there are a number of circumstances where people are subject only to forty to forty six and not two  few of the people who've been certified under four thousand two hundred and forty eight have in fact been incompetent that has been a very limited subset and judged as you asked about and i understand that but that's the problem is you sort of end up biting  tail because take my hypothetical somebody who is incompetent who is mentally ill can't help himself and the defense every time he's out in the public he rapes a woman and he gets charged and he never goes to trial and is mentally ill and mentally incompetent and can't stand trial it's a very narrow area but it's very dicey in the sense that when somebody hasn't committed a crime and we're still confining them removing them from society we have to have good reasons and we have to be pretty sure ourselves absolutely and these congress went through with all these procedures they had made clear and convincing evidence you have to have an attorney you have to have an attorney appointed you can't waive that after have an attorney a point and he gets to cross examine av witnesses and and have a hearing and that type of thing you don't have his assistant and that's recognized and there is a risk of error but then there are those compensating factors that it's subject to review on a regular basis is subject pay b s and so forth and the question is is there any other protection that congress could have provided less then releasing them to th in that case your honor up the government could pursue forty to forty six commitment forget and according to four hundred and sixty four thousand two hundred and forty eight is what we're having which is sexual dangerousness and they have to demonstrate under sexual demonstrate those elements and the my question to you is if the man is incompetent to help defend himself then we would have to release him back to society right he could not be committed under forty to forty eight but i do believe he'd be a perfect candidate for forty dollars to forty six  and forty six excuse me and judge waters in montana conducted a forty six hearing and reached the same conclusion and i think if the government believes that it has an interest in people who it thinks it can't meet the statutory standard under hearing in that case that can proceed because there is unlike in forty to forty eight there is no prior conduct element except the statute doesn't make any distinction statute just creates the elements in the statutes that if in the past he has created sexual misconduct or abuse of children that that's an element that's created but the other forty six he has to be dangerous right he doesn't need to be dangerous but the words since every case has to prove the element the factual element yes every case as a rule that the only thing the judge never did is he said i normally have a prior criminal conviction to prove it and that makes me satisfied but the statute doesn't make that distinction the statute says if there's a past fact that demonstrates has committed these violations is infractions that's what congress voted on and so he would be holding unconstitutional unless the fact can be established by a prior conviction no i don't think that's right i think judge starr was applying that criteria and this case alone because of prior criminal conviction necessarily means that conduct has been proven beyond a reasonable  understand that's easy and makes it easy that's way most cases come up and the right one in that out that's right but here my hypothetical and this case is he's been charged several times but he can't stand trial because of his mental incompetence that's right and  me not every understand that your argument but in many cases under forty to forty six dollars there's going to be evidence of historic action right and so it seems like the necessary corollary of your argument is  scenarios that too would be unconstitutional because he's not able to assist in dealing with those factual issues it can't possibly be the due process term turns on whether it's an element or whether  evidence to support an ultimate conclusion which is that what it is important to forty six dollars mean the same inquiry is is it issue can this person assistance defense it seems like his inability affects both of those equal  distinction is is that it's because it's an element in a four thousand two hundred and forty six case where as often is the case the experts rely upon his prior actions in order to reach their conclusion you would say drawn than in forty to forty eight so in forty to forty six you have to have a mental disease or defect as a result of which you would have posed a substantial risk of bodily injury to a person or serious damage to property well this hypothetical goes to the circumstance and he's saying there are a bunch of them where the only way they can prove it is by looking at sas conduct and so you're saying that forty to forty six can't be applied if you have to look at pas conduct i think it can be applied i think there may be additional procedures that a judge might see fit to include in such a proceeding whether it's additional time to investigate claims or something like that but it's fundamentally different you could say that about forty dollars to forty eight  and forty six can't do it there either and we've got surely incompetent people they need to be in society right and they need to not be detained and i mean understand that argument what i don't understand is which is well in matters of they're an element but it doesn't matter if they're evidence to establish an element i think congress made the difference this is not a difference that we're imposing and so when congress he was the due process question is not formalistic based on the name we give to something it's not a label driven issue like matthews result which looks at the the actual substance and in both cases we're talking about evidence of prior action one that supports the conclusion that's an element and one that is the element itself that seems to me totally a distinction without a difference and so i'm just i can't understand how you can have both of the thinking say they both go or neither go i don't understand a world in which you say forty to forty eight is the problem i think the distinction i'm relying on is coming from adding ten which is where the supreme court made a distinction between looking at prior historical factual conduct and allegations and looking at issues like nd rd elements of forty  dollars where it's really experts evaluating the significance of facts in a particular case and they're the idea is that the risk of erroneous deprivation is lower and for that it can constitutionally proceed of course in the ideal world we wouldn't have proceedings like this against an incompetent person but i think there's a recognition of the difference between you know ideal world i mean it just depends on whether you've got little girls that are nearby right i mean that's a it's hard to say what is an ideal world in that context because your world is they go free and that may be necessary not sure i'd call that the ideal i think it's the role that congress created and so if there is a gap and statutory congress clearly didn't clear create an idea that somebody who's mentally incompetent and sexually dangerous goes free congress wanted that person confined and told the dangerousness is lifted if the dangerousness have has been proven but i'm taking it as a as a ultimate conclusion in other words congress did not want a mentally incompetent person who is sexually dangerous in society they did not want that person and so they under your argument they get caught under the conundrum where because they're mentally incompetent they can never have a hearing under forty to forty eight and therefore out in society i think that that's the really high oblong that they're trying to address a mentally incompetent person who commits sexual acts and can't be stopped even when someone is charged with murder and they are deemed incompetent to stand trial the judges next question is not let me take a peek at the government's evidence and see how much there is the quite the decision has been made that such a proceeding would be so fundamentally unfair that it cannot go forward because of one side are we as a matter of due process we do not convict people who are mentally incompetent but that doesn't mean that we can't remove somebody who's dangerous to society  mentally incompetent and other words under that we can devise a scheme to remove people from society as long as they continue to be dangerous and a lot there are a lot of contingencies and that sure it surely isn't but you're basically saying congress must set mentally incompetent people free regardless how dangerous they are to society whether it's under forty six dollars or forty eight no i don't think that's right and i do feel that in the sense that i don't know how he can conduct a constitutional proceeding against mr white mr white has a right to testify he has been determined by many experts to parent warrants that have been told to them to mimic things he's heard before to s things without regard to whether he has personal knowledge of them or not that testimony is so inherently defective that his right to testify is let me ask you dr jake go to my hypothetical we have a man who's raped three women yes and the three women are willing to come in to testify they come into court and they testified to the right the man can't help himself he can't testify he's incompetent so your alternative in that case or your argument lea eight under forty eight it couldn't proceed because you couldn't have a constitutionally fair well really even under forty six if the experts have to rely on the three rapes to conclude he's dangerous he can't help himself on those either i think then you're the situation that this court was dealing with and comstock when it was addressing the facial constitutionality of the of the adam walsh act and saying that you know when you are not when you're looking at the nd and rd process and you have already conduct and we have those types of cases in other words this sometimes we have confessions that oftentimes they confess to the people who are talking to him oftentimes you have convictions those cases you're saying that doesn't raise a significant problem although the statute does make that distinction but in the circumstances in the given circumstances where historical facts are necessary for the expert your alternative is to set them free and i guess you don't like to face the policy issue that that's true but that is inevitably where your argument leads is the three time rapist who's incompetent is going to be on the street  free but the only evidence is the past conduct that's my hypothetical but it under forty six dollars or forty eight dollars but it's a factor to be considered in the forty in the experts evaluations it's not a standalone el it very clear that you know part of this issue with respect to the st element is not to affix criminal culpability but to set out the necessary background facts to determine whether or not those facts along with expert testimony support a finding of dangerousness i don't see in that sense it's a little bit different is it isn't it than you know so that rigid separation of elements i don't think so because congress was clear to set it aside and to require that the government prove you think they set it aside just for this case i don't think so i think they set it aside because they believed it was important they were clearly legislating against the backdrop both the forty to forty six which does not contain a prior conduct element and against the supreme court's long line of cases saying that confidence is rudimentary to the exercise of these rights that we're going to be in a criminal trial the it's been decided in a criminal trial but the those rights were given by congress also to respondents in a four thousand two hundred and forty eight case and as in a criminal trial this case would involve and i would urge you if you're considering the case to put yourself in touch devore shoes and to imagine how he can conduct a proceeding that reaches a reliable answer on the  perfect it's the best they can do to attain the policy the question is as i violate due process and the biggest the fact is the risk of a false can contain but those risks are mitigated  in this case as opposed to a false conviction where somebody gets a term of punishment that here you can consummate review the facts you can constantly review a subject the person to efforts to try to cure the mental illness it may not occur but at least you constantly have that as an open issue it's a little bit like civil contempt you have the keys to the door now of course a mentally incompetent person doesn't have the keys because he's mentally incompetent that's right and that's a critical us to eat etc made but the question is is society to have its hands tied from the person who is dangerous to society and is mentally incompetent because of that  excuse me vice versa he's mentally incompetent and therefore dangerous to society is that person have to be on the street because he can't assist in describing the historical facts when other people can clearly do so the rapist a three way person come in now he said i can't deny it but we can make judgments about that the three women come in and they all describe the rape in detail and the judge says i need clear and convincing evidence about this this is a very serious matter but if that were enough your honor in a very serious charge say a murder case wouldn't then the answer be that there would have to be you know the government could bring witnesses to testify and the judge could make your client's anough to  higher level of process that we require in a criminal conviction where there's a penalty imposed this is an effort to merely remove somebody from society to the extent necessary and if it turns out that that can be mitigated he gets relief he's not been punished he's been removed incapacitated because the danger in society has to be able to handle that type of situation and that's what congress did that's what congress did also  and forty six which remains available and i think it's important to recognize that because mr white is incompetent let me it's not important because forty six is available as i mean forty eight unconstitutional no we've not raised again a facial challenge for you this committed so it's not as though the government is without a remedy i also want to point out again that if someone is incompetent and committed under four thousand two hundred and forty eight they cannot meet the possibility standard this court set forth in mclaren and their detention would not be kate all of participating in the treatment program he could not make the plaza all claim for relief showing is that in the record that his mental condition is untreatable or would not prevent him from from being treated explained that he would not be i mean he says that in the records or evidence to support that there are experts who referred to his inability to respond to medication he's not on any medication he suffers from fetal alcohol syndrome and from an intellectual disability he has an i q of fifty four to fifty six and so when the program is about talk therapy both an individual and group settings this is a person who you know during the factual questions he's not the  ability you sort of make it sound like it's a one way street his attorneys can do all the cross examination they can bring their own evidence they can investigate to find people who would be would help the defendant they  have and they have the standard of proof they have decisions being made by a guardian it seems to me he can't testify and that's put an arm behind his back but he's still got an army still got his counsel he's still got investigations still got subpoena power he's still got cross examination and we're going to have to be pretty sure on the government's prove in that type of circumstance because of the defect but the question is is that defect rendering the statute unconstitutional as it applies to this man and i strongly believe so because i understand you do you make a good powerful argument thank you are there enough for there to court to affirm thank honor i think response councils argument makes clear that to a large degree their argument depends on trying to create some sort of distinction between their constitutional rule of forty to forty eight case and their constitutional rule in a four thousand two hundred and forty six case we don't think that distinction is viable either as a matter of logic or in light of this court's opinion in comstock where the court explained that although the st element is doing in a four thousand two hundred and forty eight case that is part of the evidence the government needs to show in order to show that someone has a mental condition that causes a danger and at that point i think there distinction between forty two million four hundred and sixty four thousand two hundred and forty eight really slips away and what you're left with is the government's very significant interest in ensuring that someone who is mentally incompetent and yet very dangerous can be put