to him of the federal defender's office on behalf of the appellant i have taken fifteen minutes and i'd like to reserve four minutes of post as currently interpreted forty two forty one d requires the court to detain a defendant found incompetent to stand trial become a little appalled that michael is very requires the court to detain a defendant found incompetent to stand trial due to an intellectual disability regardless of whether he is eligible for release under the bail reform act this is simply offensive unconscionable by today's standards mandatory detention is completely unnecessary we know that from the success of outpatient competency restoration programs in arizona and many other states which have to meet the same competency standards defendants sometimes have to spend more time in custody for competency restoration then they do than they would if they were ultimately convicted this mandatory detention violates due process equal protection a hybrid of those guarantees the eighth amendment and disability laws in the court should also could also interpret the statute to avoid these concerns i'll start with the due process issue heightened scrutiny must apply here because pretrial liberty is a fundamental right that is clear under salerno falco and lopez vallance way this court is not bound by strong after strong this court sitting on bank and lopez balance whalen held that mandatory pretrial detention without an individualized determination of whether detention is necessary to achieve the government's interests violates due process pretrial detention cannot be based on an restoration for trial in both circumstances the government just wants to proceed with the prosecution i do don't see any difference in the analysis of these cases and under miller versus gammy this court is not bound if the reasoning of the intervening higher authority is clearly irreconcilable with the prior panel decision the counsel in that case that was concerning the arizona prop one hundred correct yes your honor and the court in that in talked about some of them i agree didn't actively look at the federal bail act versus problem hundred but did talk about some of the things that we need to prop one hundred correct well the thing that was unique to prop one hundred is that it was salient point here forty two forty wendy at least as it's been interpreted so far is mandatory no matter what how effective our mandatory the crew question i was go is there anything that keeps the attorney general once he detains the person from perscribe in outpatient treatment as more economical or more efficacious it's that  that been discussed at all because simply as i read it on its face when the attorney general detain someone it means it that he is under your power you can keep you in a facility or let you go under appropriate conditions it's just that now it's the attorney general's power or do you say that the forty to forty one absolutely requires that he be maintained in car several circumstances your  that's a very good question strong and the other federal cases seem to indicate that it is mandatory at least inpatient hospitalization is mandatory the court shall commit to the attorney general and the attorney general shall hospitalized and that's how the attorney general has been interpreted it and that's they delegated it to be o p and b o p s program statement inpatient hospitalization at a federal medical center is mandated but statements or so or in the c f r well the c f r delegates it to be o p and then the program statement set forth b o p policy that it will be custod hospitalization at a federal medical center we were meant to custody the bureau of prisons for sentance and we leave it to the warden to decide the bureau of prisons what to do because we don't tell them where to put people or to do sometimes they do something well your honor that's that's not the way they're operating here and so this court determines that inpatient hospitalization isn't mandatory then b o p and the attorney general need to change the way that they're doing things and one problem too is that b o p passivity if they have have only certain facilities that deal with that these sorts of issues none of them are in arizona so our clients have to be sent thousands of miles away far away from their family which is the worst possible scenario in the worst possible way to help these people achieve competency for many of them if they're intellectually disabled but the constitution also compels this and it's not just lopez balance well a but also cell that compels the consideration of whether inpatient hospitalization is necessary after the government must prove undersells framework that by clear and convincing evidence that no less restrictive alternative is substantially likely to achieve the same results and in cell all those cell was issued a few years before strong strong court didn't consider it and it sets course the framework for how to balance a sufficient a significant liberty interest against the government's countervailing incompetency restoration and achieving competency restoration in this context so our position is that lopez balance will and sell compel the consideration of less intrusive alternatives and i take it there's nothing peculiar to your client here that would be essentially different from anyone else subjected to forty two forty one d if we agree with you it means that the government cannot detain people for this reason well it requires an individual lies determination of whether it's necessary whether less intrusive alternatives but what would be the quote necessity here there's no statutory framework for it then is that in other words the government what would they say that this person is incompetent and we'd like to have them for a while because it would be helpful i mean unless there were a new statute to have a new constitutional argument they would not be able to detain them for any reason other than the conventional flight risk and so on well your honor other statutes i think the arizona statute is instructive here some of the factors that other states consider is whether you abandon yours you're just saying there could be a difference that what your honor i'm basically asking you know straightforward question wouldn't this render unconstitutional every detention under forty to forty one no your honor every mandatory detention the constitutional test would be can the government demonstrate by clear and convincing evidence that less restrictive alternatives are substantially unlikely to reach the same result that is the cell test and that framework would work very easily and well here and factors such as court yes with the burden up with the burden on the government to say this person is incompetent and here's our treatment plan and then your side says well that's not a good treatment plan we want to different treatment plan ye honor and i believe it's a constitutionally required test and it's not only required by the due process clause it's also required by the equal protection clause and in the twenty eight j number seventy six i in doing some more research and reaching out to equal protection scholar in this area who alerted me to the fact that this is a hybrid claim this is not just a standalone due process or stand alone equal protection it's a hybrid because it equality fundamental fairness and basic human dignity and in doing research into this area i re read bearden and the situation in barrett is so closely analogous but it's more compelling in this context because a person has even less control over whether they have an intellectual disability then they do ever whether they can pay a fine and the person's interest in pretrial liberty is stronger because it's bolstered by the presumption innocence whereas the probationers interest in liberty is conditional that person has already been convicted of a crime for which prison is authorized so i'd ask the court to carefully consider that as well because we strongly believe that recognize that each person has different care and treatment needs based on that individual's characteristics and that there is no one setting that's going to be appropriate for everyone the competency restoration said forty to forty one can and should be read to be consistent with those laws forty two forty one states that individuals who have been deemed competent shall be hospitalized for treatment in a suitable facility but in forty two forty seven the statute to find suitable facility as one in which is suitable to the care and treatment of an injured individual of given the nature of the offense and the characteristics of the defendant and that's sort of analysis is not being done in these cases we have seen that this particular t this is an issue of statutory construction and even without an argument if the district court level the federal magistrate or the judge in this case would have been using statutory construction to remain to the custody of the attorney general's office and also to place in the custody of a suitable facility which is really what the b o p regulations require they don't just require that the court you know give to the custody of the attorney general the b o p regulations state that involuntary hospitalization of these inmates under forty two forty one d requires a court determination that the person may be suffering from a mental disease or defect so i assume that that happened at the district court level for treatment of which he needs custody in a suitable silty and so the o p is relying on the courts to make that determination for them and to in this case that's happened numerous times the court is determining what's a suitable facility and because hold that i'd have you hold that a suitable facility is as it's described and forty to forty seven that it requires an individualized determination of the characteristics of the person in order to determine where they're going to be placed and that should be a task of the district court yeah i think it should be because it's an issue of statutory construction because it's not just where that person is going to play so it's not asking the court to specifically say this person needs to be shoved away into you know north carolina somewhere it's just saying that the attorney general needs to apply to the rehab act forty two forty seven in order to be internally consistent and make sure that an individual is determination is being made as to think you would say that the district court judge should order the attorney general to make a particular determination within each case whether or not outpatient care would be appropriate or whether in don't think it would be an individual determination in each case i think it would be a statement saying that they need to consider the characteristics of the defendant generally in order to make a determination of what a suitable facility is actually going to be  facility and hospitalization in a suitable facility is going to be defined under almost that in the rehab act has to be consistent it's going to mean that an individual is determination needs to be made by the attorney general  the attorney general would do it and then he could be challenge so let's suppose you win here under that theory district court says ok you know not mandatory but i don't do anything about mandatory i remained  possible stand but then yes yes yes absolutely and you would see k b s corpus and say you you know you the attorney general take him out a button or and send him over to the youth or send him to raleigh north carolina good morning shelley clemens on the happy u s attorney's office for the just six years on a tucson branch this court should affirm the district court's finding that inpatient treatment under forty to forty one d is mandatory a set forth in the statu affirmed this court's order remaining the defendant to the custody of the attorney general for commitment in a appropriate treatment facility for purposes of restoration for trial starting with the subsidy of due process argument th test for competency in a case like this is whether or not a person has sufficient present ability to consult those lawyer with a reasonable degree of of rationality as well as a factual understanding of the proceedings before him as this court held in us the strong forty two forty one d has already been found to be constitutional in strong this court rejected similar arguments that have been made by the defense today in strong the defense claim that the mandatory detention of all incompetent defendants violated due process specifically one because it didn't consider alternative less restrictive treatments and their case of jackson versus indiana which again ultimately did a hold that indefinite commitment of incompetent defendants would be unconstitutional however in the making there holding the supreme court set for s e language regarding the constitutionality of committing incompetent defendants noting that so long as there is a reasonable period of time necessary to determine whether or not there is a substantial probability that a person can attain capacity in the foreseeable future to those standards which the supreme the congress clearly codified that language and we're paying attention to jackson when they drafted forty two forty one v the court is jackson basically set the minimum substitute of due process limitations or boundaries if you will under which somebody could but contrary to what was in the language of prop one hundred under forty two forty one d there are safeguards in place to miss ensure that someone is just not being held and being held unnecessarily for a long period of time forty to forty one he has mandatory caps in it consistent with the language and jackson the indiana that they won't be held for more than a reasonable time necessary to determine whether or not they're sort of substantial probability that they will be able to achieve competency within the freezable foreseeable future so in a dish and the statute contains safeguard language that says in no that under no circumstances w beyond four months and if it's going to exceed that there has to be a hearing in front of the court and the court has to make findings in that instance that there's actually a relation between the defendant being held longer and the ability to say that he's going to be restored to capacity later on their kid you just can't hold him to say well we want to try a little further that the government actually has to resent evidence to show that there's a reasonable basis to believe that a little bit longer holding in fact render the defendant to be competent in the near future the defense argues well i'm sorry to go back to my earlier point those procedural safeguards there are contained in forty two forty one the year what distinguishes this case from oil it because in that case oil and they were just going to be held pending the duration the proceedings but flexible safeguards in there that allow for earlier release if necessary and procedural safeguards in there if there is going to be necessary for a longer holding the defense in this case argues for a heightened standard arguing that strong was decided under the wrong standard however strong was decided underneath the standards set by the supreme court there is has been no supreme court case that has required a more heightened  government would only be required to show that the detention was substantially related to in court government purpose the ability to prosecute individuals who had been committed who had been found to a crime probably cause been found to hold them for committing a crime is has been found to be both legitimate and compelling as set forth in supreme court him around her suburban separate and craig be boring which was actually a suspect classification case we would not have to show nearly tailoring but simply that there was a substantial relation between that government purpose as we can already establish a compelling purpose we've clearly met the purpose as part of it but in this case there are other reasons besides just the restoration to capacity nisus assess the tate and show that this is substantially related when we're talking about restoration to competency we're not just talking about treatment we're not just talking about therapy we're talking about a what the court has described is a need for a detailed and more thorough examination than what we do you would have for the initial finding of lack of competency we're also talking about a situation where some point the medical doctors at the at the facility might decide that perhaps they need to given the defendant's particular circumstances might need to medicate which is certainly none not something that should be assessed on an outpatient basis but instead should be subject to the random and thorough assessments that would take place well wouldn't that just be part of  individualized analysis it would be but one thing to note is this individual is analysis of whether or not outpatient which is inpatient can't really be taken place on the record that's typically created when someone just has an initial two to three hour a valuation to determine whether or not they might possibly not understand the proceedings and aren't able to communicate with their attorney the to determine whether or not someone would be better off with inpatient versus outpatient would seem to need a more thorough analysis which is what the would be addressed when the person is then rem g for a long and thorough analysis just a moment ago when you said the initial determination the words you used were might possibly be incompetent but in order to get into this whole process he's got to be found noted there are times when an individual's liberty interest a matter how fundal gives way to the public's interest in florida they were specifically addressing whether or not detaining someone is being a dangerous community might violate due process but in doing that in assessing that case the court noted many other situations where a person's individual liberty has given way to important government interest  manner that they have assessed other cases in the past but regardless of the standard of scrutiny this particular statute meets constitutional muster because it does it is for a legitimate and compelling purpose the government would have the burden to show that someone was competent to stand trial at the time there are procedural safeguards in place to ensure that someone is not held for an overly underlying time in addition there are the statute is while the government's not required to show it is merely tailored it's not every defended it's only those defendants who have been found to be have a defect such that they're not competent to stand trial but what happens to defendants that have that need to get into one of these facilities and they're waiting what happens in the meantime where you are that wasn't the issue in this case  in this particular instance the magistrate it which and his orders affirmed the district court did not order the defendant into custody immediately instead he allowed the defendant to remain up out of custody on a pretrial release pending  notification that a bed was available that way limiting and basically limiting the possibility that he was going to be held for a long time just waiting for a bed which would have been the prop was the problem that was addressed in oregon or make the organ organ between where the court found that there was no rational relation between holding somebody in custody just waiting for a bed that does nothing to help bring somebody back to the sense that they're actually the situation the factual situation and strong where  the lower court allowed the person to remain in a sort of recovery halfway house until levi elated yes exercise and that is correct so there's no there's no detaining somebody in this instance that would have no relation to the purpose that's tension is this case is there strictly limited it has a very limited purpose does it does somebody who's in this sort of waiting limbo waiting for a bed they get any kind of care or any kind of treatment or anything or they're just out of custody awaiting well this particular defendant remains underneath the supervision of pretrial services as far as i know there are there is no specific  treatment and they're monitoring you know what the wait period is that the i guess there are two facilities you know i don't know your honor i could check on that and i think it sometimes just kind of depends on the time of the year sometimes it's right away sometimes it's longer  as a side point you know we have these cases about whether people can be forcibly medicated so with this person's transmitted to butner does it require another proceeding for forcible medication to restore competency that is correct your honor and not to get to another point that so versus united states does not change the landscape door effect forty two forty one d in any means cell was limited to a very specific  issue whether or not a defendant could be involuntarily medicated against his will solely for the purpose of rendering him to be competent it's not a political in this situation it's also not intervening authority because it was decided three and a half years before strong but given the fact that it's a very specific finding in that case it was strictly relating to medication and they also noted that medication needed to be to list restricted means which was the thirst or third part of their test but they limited that least restrictive means solely to the medication finding in that and the province of miller versus gammy that case is not clearly irreconcilable was strong or the provisions of forty two forty basically aspire to a policy that should be held generally to all persons that are disabled but they don't contradict or contravene are abrogate in any way the mandates of forty two forty one d this issue was not raised in the district court in any way or fashion as such there was no way that the district court could have erred much less plainly erred by not finding the forty two forty one  construction that will be looking at the first being a relating to your honor's question that when two statutes are passed one much later than the other one generally the court considers that congress knew  existence of the previous stack at the time that they passed the latter act and they will not go out of their way to find them to be in conflict the second  statutory construction is we're talking about a general statute versus a specific statute the rehabilitation act is it again it just appears general statement regarding policy and and loose respect of means of treating or helping those who are disabled the forty to forty one d is a very specific act that relates specifically to instances where people been found of a mental disease or defect and who also cannot understand the proceedings or communicate with their attorney the checking or instance forty two forty one d will control regardless of the timing of the passage this supreme court has noted in language that congress generally when they passed a statute they mean what they say and they say what they mean and i may have actually switched up but and in this two or instance when congress passed the statute they were very clear to say that they shell go inpatient for the reasons that i've already argued before th hospitalized in a particular facility if we're talking about treatment we generally say outpatient treatment we don't say inpatient hospitalization we say hospitalized which is the general meaning of the term well  but it's also committed to the custody committed to the custody of the tourney general so once you're there yes only hypothetical but if the attorney general were to decide that for individuals outpatient mike it better i don't know who could sue him to stop it presumably the put the prisoners wouldn't want that i'm not i'm not suggesting how he should allocate his budget but if i had to interpret  it under his discretion to be something different but not mandatory well that there's two parts of the language of the statute if we don't just look at the word hospital lies by itself we look at the entire terms and it says shall commit which generally means to place in custody in the custody of the attorney general for placement at a suitable treatment the syllabus set forth in forty two forty seven the statute gives the discretion to the attorney general to decide what that appropriate treatment facility is but going back to the ability to act even if it was to apply the defendant would have to show that he is in fact a qualified person with a disability and that he's being discriminated against soley on the basis of that disability again so this issue was not raised below there's an insufficient record to show that he's disabled it's true that there is some mention in the report of diagnoses that might lead someone to leave these disabled but those are based on the defendant's reporting and there's a rebuttable presumption there that he may not be a or i'm sorry that any presumption that he might be disabled is rebutted by the examiners no illness is irrelevant or whatever disability is irrelevant if the defendant can understand the processes this person is not being placed in custody in commitment purposes just because he's allegedly mentally ill he's being placed there because he meets the test for competency inclosing if this court was to follow what the defense wanted to do they would have to find that the district court erred in following strong and overrule that panel decision you would have to call into question the supreme court's reasoning in jacksonville indiana you would be requiring the court or the attorney general to have a mini trial on the in the issue of  patient versus inpatient treatment which is constructively amend forty to forty one d's mandate of commitment to the custody of the a g for purposes you would have to find that the you know that the rehabilitation act which is a statute general construction contradicts a very specific statute in violation of well established rules of of statutory construction and that you have to find the words shell commit custody and hospitalized are i had many points to cover up trying to get to the mall in the to begin with the disability claim was not raised in the district court but it is almost my client is almost certainly qualifies as an individual with a disability that's discussed on pages twenty seven through twenty eight of this by anybody does there has been no finding but if we were to prevail on any theory this has to go back to the district court for further findings  the rehabilitation act has been amplified through case there's also the pad act which is cited in the briefs which was an acted in two thousand well after this forty two forty one i explained in my opening why this court is not bound by strong so did set forth a framework for balancing a significant liberty interest against the government's countervailing interest in prosecution in the context of competency r estoration the strong court did not consider that i've explained why lopez balance while a in the pretrial detention context also implied we overrules stronger that is also further explained in twenty eight j number seventy seven and i would emphasize that this situation is really properly analyze this pretrial detention statute there's no indication that my client's liberty would be jeopardized if he hadn't been charged with a federal crime the state has never seen fit to initiate civil commitment proceedings against him jackson as the government conceded was limited its holder was limited to indefinite  has just exponentially grown since one thousand nine hundred seventy two and these issues under the equal protection clause and under the due process clause have to be judged by today's standards under over both over fell and morale is santana the government suggested this would create a need for a mini trial well that happens all the time in the criminal justice system that happens under the bail reform act where these sorts of factors have to be considered to determine whether any conditions can reasonably satisfy the concerns of the government the government says that this is not a long time well four months is a very long time and as i said this is can be longer than the defendant would actually spend if he is ultimately convicted but it's also important to understand that it's almost always more months b b o p is suffering from severe staff shortages i cited apartment of justice task force report in the reply brief i believe and that situation has only gotten worse just a few weeks ago we were informed that we can expect further delays not just to wait for bed space but for the evaluation process i was there at b o p so this is this is almost always going to be at least four months and it's usually going to be more than that because v o p simply doesn't have the staffing that is getting the tourney general would see if you would make it some sort of effort to construe the statute  yes because of that i thought from our discussion they could get a b s of mediately then because there's no basis for keeping them well your honor what happens in reality is is the government comes back and says b o p needs more time and so then the court says ok well we'll recommit for another four months and in reality that's what typically happens but you think that the attorney general might want to be a little more economical and look at other measures well true i mean it's especially because we have outpatient restoration program right in tucson which is a fraction of the cost of incarcerating someone for four months and just help me here because maybe i just didn't read deeply enough so you're saying that the four months simply by the courts say so can be extended indefinitely not indefinitely repeatedly repeatedly yes for a reasonable period of time whatever the court determines that that means it is and that is statutory under what subsection forty two forty  believe i just want to point out that that in the equal protection alice's this does burden pretrial liberty so it should be strict scrutiny and it does require necessity hundred done and the supreme court of georgia did just find a very similar statute unconstitutional considering all of all of the knowledge that we have today ok your honor thank you very much we appreciate your comments interesting case the matter is submitted here and that ends our session for