William J. Burrell: If it please the Court, the second -- the contention of the United States here as I understand it is that the finding that this man will probably endanger the safety of the officers and property or other interests of the United States. And the finding, the suitable arrangements are not available elsewhere for him supports the right of the United States to imprison him or whatever is said about his care or treatment, he is being imprisoned and he is imprisoned side by side with prisoners and as just as much of a prisoner as if he was convicted and had been convicted of -- of a crime. And I think that it is important that we consider him as an innocent man as we must consider it. Now, what about this first condition that he will probably endanger the safety of the officers, property or other interests of the United States. That's the only finding that was made here, what are those other interests, what gives the United States the power to come and take a citizen and confine him perhaps permanently on -- on a finding that he probably will endanger some other interests of the United States. Think -- think of the dangerousness of such a statute in spite of the good motives of the United States or the authorities, I think, we have here a statute that by its terminology is an extremely dangerous statute.
Earl Warren: Isn't that done in state statutes all the time?
William J. Burrell: I don't know if that's just the terminology.
Earl Warren: Well, I -- I know in one state at least, the -- the finding the Court must make is to the effect that the person is so mentally deranged that he is dangerous either to himself or to others or to his own property or to other -- others' property.
William J. Burrell: Well, I'll --
Earl Warren: And that constitutes a -- a valid holding of him and sometimes they -- they are held along with criminals too because some States only have one mental hospital and they keep both criminally insane and -- and the non-criminally insane in them. But I'm just trying to find out what -- is -- is there any distinction between this situation and the ones I have mentioned.
William J. Burrell: Well, I'll be frank. I haven't made a study of state statutes except that I don't believe that this particular provision is as definite as the type of thing that which you have been referring. To me, it's -- it's quite vague to say that someone will probably endanger, you don't have to find that he will endanger the officers of the United States or you don't have to find that he will endanger the -- the property, but even on a finding of some other interests without those other interest being defined, we can -- we can keep a man in prison and that's the point that I was trying to make.
Felix Frankfurter: Then you had no problem that the States showed that, the State have -- the States have power. They have the question of power and he would be driven deranged and --
William J. Burrell: That's right.
Felix Frankfurter: -- they have arrest him in public, then they have --
William J. Burrell: That's right.
Felix Frankfurter: (Inaudible)
William J. Burrell: And their --
Felix Frankfurter: But the Federal Government has the power just in regard to that.
William J. Burrell: That is correct.
Felix Frankfurter: As to this district, I suppose.
William J. Burrell: That is correct.
Felix Frankfurter: And there is a statute, I don't know its term, but it was a statute in this District whereby was on an acquittal, don't you think? On acquittal you may be (Voice Overlap) --
Speaker: (Inaudible)
Felix Frankfurter: Pardon me?
Speaker: (Inaudible)
Felix Frankfurter: Yes.
William J. Burrell: That is right. That is the second reason other than the terminology there, but -- but what gives the United States the power to really enter this --
Felix Frankfurter: That's your --
William J. Burrell: -- field of insanity.
Felix Frankfurter: -- that's your problem, that's your (Inaudible)
William J. Burrell: And then -- then the --
Felix Frankfurter: Are you going to answer it? Are you going to --
William J. Burrell: Well, I -- I thought -- I'm sorry, I thought I -- I had answered it. It is, of course our --
Felix Frankfurter: What did say, it hasn't gotten to me.
William J. Burrell: It is our position that they only have the powers that are delegated to the United States. There is nothing in the Constitution whatsoever from which that says anything about incompetence.
Felix Frankfurter: (Inaudible)
William J. Burrell: Well, it -- it would have to be a necessary --
Felix Frankfurter: I understand you (Inaudible)
William J. Burrell: If -- if there is some reasonable basis for keeping him in connection with the -- the crime that's --
Felix Frankfurter: (Inaudible)
William J. Burrell: If you accept the proposition that once a man commits a crime or he's accused of committing a crime that that gives the Government jurisdiction to deal with him just as if he were living in the District of Columbia just because he's accused of a crime, we accept that proposition and I -- I have no position to maintain, but --
Felix Frankfurter: (Inaudible)
William J. Burrell: Well, there is nothing --
Felix Frankfurter: (Inaudible)
Stanley Reed: The Government has power to try people for their certain crimes. If you have power to try people for certain crimes, you have the incidental powers that go with the proper conduct of those criminal courts, do you not?
William J. Burrell: That -- that is correct if it appears that there is some reasonable chance to try him. I think the Government has admitted here that once it appears, it is not likely that he will be tried that the Government's power to then continue to keep him in the prison must be based on something other than just the power. It's power over crimes against the United States.
Felix Frankfurter: If -- if this is the case, it doesn't prevent the question that would be presented here if some insane person at large in Kansas City is a menace to the people, I'm not talking about somebody under indictment, just somebody who is unfortunately mentally unbalanced and has proved to himself to be a menace in his fellow citizens and Missouri does nothing about it and Kansas City, the City of Kansas, does -- does nothing about it. The United States Marshall can't do anything about it, the U.S. Attorney couldn't do about it, the Attorney General couldn't anything about it, could he?
William J. Burrell: Not as I understand the law.
Felix Frankfurter: (Inaudible)
William J. Burrell: Well, I don't think -- I don't think it is unless -- unless you would say that because Ohio has released him but that's -- that -- that casts on society some dangerous person that no one can touch.
Felix Frankfurter: Uncle Sam can jump in because of some local authorities on the State doesn't attend to that kind of a --
William J. Burrell: That's right.
Felix Frankfurter: -- danger to society, could he?
William J. Burrell: And -- and that gets to the next -- the next question there that the finding that the suitable arrangements aren't available elsewhere is no basis for the exercise of a federal power. We can't base a -- a power in the United States upon a -- a finding that some State according to the Federal Government isn't properly exercising its -- its power here.
Felix Frankfurter: That's -- that's the reason the precise fact in this case becomes very important, but we haven't got the case that I put to you.
William J. Burrell: No, that's -- that's correct.
Felix Frankfurter: It should be, I think as being in the case.
William J. Burrell: But -- but we -- we do contend that this -- this so-called finding of a federal court that are suitable arrangements are not available elsewhere. That kind of a finding isn't a proper basis and doesn't give to the United States the power to assume jurisdiction and put this man in prison.
Harold Burton: But there's no doubt in your mind though is there, that if he's under indictment, he's being held for trial and all of a sudden he gets ill, not mentally ill, but just get sick, they can hold him in a hospital until he gets well.
William J. Burrell: Well, the -- for a reasonable time.
Harold Burton: And so that your question doesn't involved much as the matter of original power that doesn't re -- on due extension of the time beyond their reasonable chance of recovery.
William J. Burrell: That is correct, Your Honor. That is correct.
Earl Warren: Mr. Burrell, the -- the thing that concerns me here is the alternatives that are involved in this situation that isn't -- whether the Government will give this man a trial for his crime or release him because the Government would be willing and has shown his willingness to -- to give the man a trial and it's only because of his mental condition that he was prevented from doing so. Now, what are the alternatives? And let's -- let's put it in a little worst form than -- than this case is. Assume this man is a dangerous criminal, but that -- the State that he comes from neither has the facilities nor the desire to hold him and protect society and there is this federal crime hanging over his head for which he has never been tried before, its -- the Government can't try him. Must -- must the Government, if it does not hold him under this statute, release him upon the public at large so he can commit any kind of crimes that -- that might be addicted to?
William J. Burrell: I -- I think that he must be released to the States that has jurisdiction over him, the State of his residence and I -- if in -- in your situation there, if the State after receiving him, I don't think we can -- if -- if they decide that its safe to let him go, I think that -- that we have to abide by that decision because the jurisdiction over this sick man is in the State.
Earl Warren: Well, may I -- may I pursue that just one-step farther. Do you believe and do you contend here that he should have been released by the Federal Government at the time the Ohio authority said he was not insane? Should they have turned him loose and let him go on society then?
William J. Burrell: Well, I think perhaps it was -- it was proper to bring him back to find out if he was sane enough to stand a trial.
Earl Warren: Yes.
William J. Burrell: But once finding out again that he -- he isn't able to stand trial, then I think he should under these circumstances be released.
Earl Warren: And you would have -- you would take that back to the -- to the time that the Ohio people determine he was sane?
William J. Burrell: That's correct. And after -- I -- I don't think it was necessarily wrong for the United States when Ohio released him to see if he could still stand trial.
Earl Warren: Yes.
William J. Burrell: But once they found that he couldn't, then I think he should be -- he should be released under the circumstances back to Ohio.
Earl Warren: All right.
William J. Burrell: Then, the -- what I -- I say here again may be repetitious, but we have this situation here on the facts that a man has been here in prison for three years. He has been found unable to stand trial. He was released back to the State, his home, the authorities that have jurisdiction over him. And I think that even as the statute is worded, the United States being dissatisfied with action taken by Ohio has picked him up again and has him back in prison. We're dealing with personal liberty, not just the question of the division of power between the United States and the States, but a serious question of personal liberty. And I think that in this particular case that it is up to the States to determine the care and custody that should be given to this man and not up to the United States. Now, I covert briefly in conclusion because of these two conditions that the Government contends give to the United States the power to restrain this man. I would like to refer briefly to my final point that there was not substantial evidence to show that he was potentially dangerous to the Government. The reason for referring to the evidence is that if this is the kind of evidence that allows, that comes within this statute, that it allows the United States to continue to imprison this man, then it is our position clearly that -- that this is not a proper and constitutional statute. And referring to the record on page 68 and the report of the neuropsychiatric staff when the question of the conditions under 4247 came up as to whether they existed, the Board said that they agreed that the subject might be considered potentially dangerous to the extent that if released he might conceivably, might conceivably persist in criminal activities of the type of which he is presently charged. In considering this man's mental illness, the Board find that he does not hold any fixed delusion concerning wanting to harm any person or group of persons either officials of the government or otherwise, so that in this respect, he probably would not constitute a danger to the safety of the officers, property or other interests of the United States.
Felix Frankfurter: Do you think we can overrule to the contrary finding by the district judge?
William J. Burrell: I think under the cases that if it is -- you're not precluded from doing so. I -- we recognized the rule that it was -- it is rarely done. The reason I'm particularly referring to this is that if this is the kind of evidence that the Government is talking about here that satisfies this statute, to me when he get down to the facts, we can see how the statute operates then it -- it shows, at least to me, the -- a force that lie in the -- in the statute.
Earl Warren: Mr. Burrell, assuming that the evidence is sufficient to support the finding, would you make any distinction between this case where the Court says that the prognosis is poor and that it -- it will -- it cannot be told with any definiteness if or when he was -- he could be tried from the case where the Court said, “We do not believe that he can be tried for one year or two years or three years.” And then he based that on -- on medical -- kind of medical testimony. Would you make a distinction between those cases?
William J. Burrell: Well, I think it's somewhat difficult to answer, Your Honor. The only rule that I think should apply if he can't be tried within a reasonable time under the circumstances, he should be released. Now, just what is reasonable will depend on a particular circumstance of each case is the best answer I can give.
Earl Warren: All right.
William J. Burrell: I would also like --
Stanley Reed: Mr. Burrell, on page 18 of the record, accused here in his presently insane and so mentally incompetent, that's the finding of a judge, now, what -- what is -- is -- what you read on 68, the evidence that he had before him and all the evidence.
William J. Burrell: That -- that was part of the evidence, Your Honor.
Stanley Reed: He had -- he had appointed some psychiatrists in his own court that he had.
William J. Burrell: That he had.
Stanley Reed: And did they make a report?
William J. Burrell: Well, they -- they did make a report. Their testimony is in the record.
Stanley Reed: And they testified sufficiently to support the finding of a judge in your point of view?
William J. Burrell: Well, in my opinion, Your Honor, they did not. In fact, they both -- they testified that he was sane. One of them testified that he didn't know whether -- whether he'd be dangerous or not. And I believe the other testified that he might persist in criminal activities similar to what he was.
Stanley Reed: Well, that's -- that's not what was on page 68.
William J. Burrell: They're substantially the same kind of -- of testimony.
Stanley Reed: Where -- where does that -- that testimony? Is that pointed out in the record?
William J. Burrell: Now the testimony of the -- of the two psychiatrists, Dr. (Inaudible), it began on page 20, on page 51 and the other on page 62 of the record.
Stanley Reed: Those are the ones appointed to the Court?
William J. Burrell: That is right, Your Honor. I gave you the pages in the original transcript, its on page 24 and 30 of the -- of our record here. And again referring to the evidence there that was before the Court of the hearing on July 30th and the testimony of Dr. Smith who was Chief of the Psychiatric Staff there at the Medical Center, their question is set out on page 29 of our brief, “What you do not find that he had any fixed delusions concerning wanting to harm any person or group of persons, officials of the government or otherwise.” Answer - “No, Counselor, we did not and we pointed that out because -- and we found evidence of such delusions, if he had held fixed ideas that the government people wanted to hurt him or if he held ideas that he wanted to hurt the Government, either one might have been construed is making him potentially dangerous.” And further testimony, “If he held the ideas that he wanted to harm the Government or its instrumentalities or perhaps even if we had been able to develop ideas that the Government wanted to harm him, we might have felt that there was an indication of potential dangerousness but we found neither.” And then Dr. Smith further testified, “One of the factors which complicates this whole thing as it is,” this is on page 31 of the brief of petitioner, “that as you probably know the hospitals, everyday are releasing man of this type, that is they are turning them out on the streets presumably at least with responsible relatives, that sort of things, so that they are certainly many schizophrenics on the streets whose illness is of the same severity as the defendant here perhaps.” So that there is a great pressure on their part apparently to turn those men loose to make room for men that they conceive as worse. And as Judge Whittaker said in -- in a case there, the -- in -- in the United States District Court, it isn't a question of where the -- whether the facilities are perhaps better in the federal prison or whether the facilities are better as furnished by the States. It's -- it's a question of a power to restrain this man's liberty. And we respectfully submit that's on the record and the facts that he should be released to the authorities in the state of his residence for further care or custody as -- as the State sees that.
Earl Warren: Thank you, Mr Burrell. Mr. Solicitor General.
Simon E. Sobeloff: May it please the Court. Mr. Burrell has so fully and so fairly outlined the provisions of these statutes that I'll not take much time on them, unless there are some questions the Court wants to ask about them. I think its -- it made perfectly clear. But I like to say some general things about the statute and then go to the main point in this case, the only real point that's before the Court, the constitutional question that he is raising, because I don't think that the fact problem that he raises is -- is one that will appeal to the Court as requiring any reversal, the two courts having made their finding. Now, I don't suppose that any statute has ever been brought before this Court for adjudication that has a more distinguished paternity than this statute. As Your Honors know, it's the product of very careful study that lasted from 1942 to 1949 by distinguished Committee of federal judges appointed by the Judicial Conference of the United States because of the recognition of the existing problem. The Chairman of that Committee was Judge Magruder of First Circuit, members of that Committee were Judge Hincks in Second Circuit. He was a district judge. Judge Learned Hand was a member of the Committee. The file show that these distinguished men didn't accept something that was done for them. This is not a ghostwritten statute. It was done by the best legal and judicial brains in the nation and done deliberately and whatever might be speculated about whether a cabinet officer had somebody presenting something, then he signs without really concentrating on it. Certainly, these men who corresponded at length and thought deeply about this thing acted with deliberation and then they worked also in cooperation with the Department of Justice, the Bureau of Prisons, Mr. Bennett, and the doctors and the administrators of the Prison Bureau and of the Mental Hospitals of the United States, Dr. Overholser, and other doctors. That was a hearing which is recorded. You have a testimony. You gather from that that this has been very well considered and not only in its administrative aspects but also the constitutional question. Now, prior to 1942 and the reason for the appointment of the Committee, the different judges, district judges were finding that many men were coming before them who really ought not to be brought before them because of their mental condition. The prison authorities were receiving men convicted who really ought never had been put on trial. And these officials were driven to going through these irregular, unjust, illegal gestures because there was no particular -- there was no alternative. At least it was deemed necessary to establish an orderly procedure that would set out those cases that were obviously unfit for trial. One section of this law provides a procedure to deal with that and other section is to pick up any mistakes so that if the question was not raised perhaps because the man did not have proper counsel or any counsel and it's found shortly after his admission to the prison that he's really insane. There is an orderly procedure for raising the question in determining whether he had really had due process. And then the question arose what ought to be the order of commitment. As originally drawn, the statute simply said that in that case if a man is found after hearing to be insane, he should be committed. If you look on page 61 of our brief --
Earl Warren: Sixty-one?
Simon E. Sobeloff: -- at the bottom of the page --
Earl Warren: Sixty-one?
Simon E. Sobeloff: -- of our brief. Yes, sir. Section 4246, whenever the trial court shall determine in accordance with Sections 4244 and 4245 of this title that an accused is or was mentally incompetent, the Court may commit the accused to the custody of the Attorney General or his authorized representative. That's where the original draft stopped. And then you can see it as -- in a moving picture, the development of this thing and the correspondence of the members of the Committee, until the -- the question was raised, well, what do you do in the case of a man who may not be tried shortly. How are you going to raise the commitment then? So it was proposed, then this language was added. It shall be -- he's authorized to be committed to the Attorney General until, at the last three lines of that page, until the accused shall be mentally competent to stand trial or until the pending charges against him are disposed of according to law. They felt to make it constitutional. They have to put that limitation on. Then our attention was further directed to the problem of what do you do with cases where a man may not be tried for a very long time, where it's indefinite -- indefinite duration of the arrangement. Do you treat him the same way? Here is a practical problem. You can't just dump the man on the street to commit further depredations, yet, there ought to be some greater safeguard in a case like that because he's being committed for an indefinite time. So they added this language, the second -- the second sentence of this Section 4246, which appears on the top of page 62, and this is the new language. And if the Court after hearing as provided in the preceding Sections 4244 and 4245 shall determine that the conditions specified in the following Section 4247 exists, the commitment shall be governed by 4248. Now, what are the conditions in 4247? The conditions in 4247, you see on page 63, that is whenever a person, I'm looking at Section 4248, the -- I'll read from the beginning, whenever a person shall be committed pursuant to Section -- let me first read 4247 on page 62, “Whenever the Director of the Bureau of Prisons shall certify that a prisoner whose sentence is about to expire.” Now, you notice originally they were thinking only of the man who has served his time and they recognized that he's a menace if left at large and they wanted to know what to do about him. But by the addition of the five or six lines in the preceding section, they made these conditions, which are outlined in 4247, apply also to the man who was not yet been tried because of his mental condition. And what are the conditions? If it is found by the Director of the Bureau of Prisons that this man who -- whose sentence is about to expire or the man who has been committed and he can't yet be tried under the other section, that he is insane or mentally incompetent. Two, that if released, he will probably endanger the safety of the officers, the property or other interests of the United States. And three, that suitable arrangements for the custody and care of the prisoner are not otherwise available, then the Attorney General shall transmit the certificate to the Court and the Court shall cause the prisoner to be examined by a qualified psychiatrist. And then the reports of the psychiatrists are filed to the Court and then there's a hearing and not -- and there must be due notice and he must have the benefit of counsel and the report of the psychiatrist is made available and any other testimony is made available on behalf of the man or on behalf of the Government that will bear on the issue. Then, if he is found to be insane and if these other two conditions are present, they believe that he is a probable danger to some interests of the United States or its property or its officers. And other suitable arrangements are unavailable. If those three conditions are present, then he is committed under 4248 which appears on page 63 and you'll see that the duration of the commitment is hedged. First, you can -- you keep him until the -- whichever event shall first occur of these three that until his mental condition is so improved that if released he will not endanger the safety of officers, property or other interests of the United States or until suitable arrangements had been made for the custody and care of the prisoner, either his sanity has restored or he's sufficiently improved does -- no longer to be in danger or you have an alternative, a State is willing to take him. Now, that was done and in the judgment of these members of the Committee that met all constitutional requirements even in the case of the man who is indefinitely ill and has to be detained indefinitely. Of course, he always has the right to test out the question as to whether he's sufficiently improved to be discharged. He -- he could raise that on habeas corpus. The statute recognizes that even if the statute didn't, of course, habeas corpus would be available to him. Not only was this draft passed on by the members of the Committee but it was circulated at the instance of the conference, the Judicial Conference of the United States among all the circuit and district judges of a country, 20 to 30 of them wrote in and making this -- that suggestion, all these things were carefully and deliberately considered. And the final draft is what wasn't enacted by Congress. Now, I'd like to come to the -- first, the -- the question as to whether the statute means what we say it means. The judges in the Tenth Circuit and in the Ninth Circuit having before them cases unlike this and that those people were not found to be dangerous, there was no -- there was no attempt to make such a finding. They have the ordinary case. There has been no definite finding of dangerousness. There has been no enquiry into the availability of alternative. So it is -- and the only section of -- the only portion of 4246 that was complied with was the first sentence that didn't have these safeguards. It was on that kind of a case that the Ninth and the Tenth Circuit said, “We do not read the statute as covering the case of one in -- an indefinite duration of insanity. To do so -- to read it so would be -- would raise great constitutional questions. In one case, the judge said, “I think the man ought to be discharged because the statute so read would be unconstitutional.” In other words, in the case of a person who was not found dangerous and not -- and there was no showing that there was no alternative facilities, they said, it was not enough for the Government to act. You have here the first reported case. There have been six commitments under the statute, but you have the first reported case here, where there was an attempt and, I think with -- on -- on sufficient basis to declare whether or not there -- this man was dangerous and whether or not there was alternative facilities. He was found on the testimony of the doctors to be a danger and he was -- it was also found as it's amply proven in the -- by experience in this case that Ohio wouldn't take him and there was no other place for him to go.
Earl Warren: Do I understand that -- that you're arguing that the constitutional power may depend on whether he is dangerous or not?
Simon E. Sobeloff: I think that if he -- were not a danger. The Government would have less latitude in dealing with him. There is a greater responsibility on the Government not to discharge a man who has shown a disposition to commit particular depredations and who in the judgment of the doctors is liable to repeat that conduct. Then, there is in a case of a man who may be insane in the sense that he cannot properly cooperate with his lawyer in the defense and yet, it is agreed that he's harmless. In that case, you can't just --
Earl Warren: I --
Simon E. Sobeloff: -- hold him.
Earl Warren: -- agree it is more aggravated (Voice Overlap) --
Simon E. Sobeloff: It's more aggravated case.
Earl Warren: I'm -- I'm -- whether constitutional power arises --
Simon E. Sobeloff: I think we have the constitutional power in both. But --
Felix Frankfurter: -- what give -- what kind of power is it for Uncle Sam to detain somebody who is harmlessly and cheerfully insane?
Simon E. Sobeloff: Because there is an indictment against him. He's committed a federal offense and he is awaiting recovery to be tried.
Felix Frankfurter: And if there is -- is the door opened? Is there a basis for taking that as right for -- deliver him up?
Simon E. Sobeloff: In which case? Are you talking about --
Felix Frankfurter: (Voice Overlap) --
Simon E. Sobeloff: -- the case here?
Felix Frankfurter: In the case you put.
Simon E. Sobeloff: I'm speaking of two alternative instances. Where there is a temporary, a clearly temporary derangement --
Felix Frankfurter: I understand that.
Simon E. Sobeloff: -- which is no more -- no longer duration than the -- a case of measles or something or some other illness that the man had. But, of course, there's very little basis for any question of the -- of the Government's power to deal with it. The question that they are raising is, what do you do in a case where the duration of this illness is indefinite.
Felix Frankfurter: Well, what does indefinite mean, if you don't know when it will come to an end or that there's practically no likelihood that it never will come to an end which (Voice Overlap) --
Simon E. Sobeloff: Either or indefinite. I'll -- I'll answer it this way. Dr. Overholser provided the answer to the question that Mr. Justice Reed asked here about the categories of -- of mental illness as to whether there are temporary and permanent or whether there are other categories. Dr. Overholser said, “It's impossible to say in most cases whether a condition is permanent.” There's been a great deal of progress in -- in medical science in recent years. Some wonderful drugs have been discovered and used in the last two or three years, procedures that were undreamed off only a few years ago are now available and helpful in many cases. So that a distinguished psychiatrist as Overholser says, that it's impossible to say in many cases whether or not a condition is permanent. And yet, you may have a case of such gravity that you feel this man may not be available for trial for a long time. This statute hedges the jurisdiction of the United States well within the limits by praying a proper deference to the State and saying if there is, in a case of uncertain duration, long duration and uncertain, a possibility of the State taking him. We're not contesting with the State. This is not an instance of competing jurisdictions. These are two jurisdictions that are -- one of them is holding off and refusing to act. This Court has upheld many acts in support of the commerce power for instance and in other instances where you have the Federal Government impinging on what would normally be state action. And the question arises as to how far in this competition between jurisdictions, where do you find the balance. You don't have that problem here. You have here Congress saying, in any case where the man cannot be tried and he is committed, the commitment shall have this limitation in it that if there is available, a State that is willing to take him surrendering.
Simon E. Sobeloff: We're not contesting.
Felix Frankfurter: That may be -- that may be -- why insensible consideration of accommodation, I do not think it's a source of power.
Simon E. Sobeloff: No, but wisdom --
Felix Frankfurter: I think you would have -- if you have the power, then the power could be asserted whether the State would or wouldn't. And the mere fact that the State should but doesn't, it doesn't get power.
Simon E. Sobeloff: No, sir, but --
Felix Frankfurter: It gives what?
Simon E. Sobeloff: -- it gives occasion for the exercise of the power that -- that the United States has.
Felix Frankfurter: And the question is the source of the power and not that you referred to the State if the State is willing to assume it. It's too easy to jump when the State shall witness the defendant (Inaudible) That's too easy, (Voice Overlap).
Simon E. Sobeloff: Your Honor, I'm not debating that with you. On the other hand, the fact that a procedure is sensible and reasonable doesn't make it unconstitutional either.
Felix Frankfurter: Well, I know but it -- I -- I --
Simon E. Sobeloff: I am -- I am merely --
Felix Frankfurter: (Inaudible)
Simon E. Sobeloff: The -- the only point that I am making is that you don't have here a clash of jurisdiction. You have here Congress staying well within the limit and saying that in any case where a man was committed even after the finding that he's dangerous. If a State is willing to take him, surrender him, and in this case, they actually did surrender him to the State and the State didn't want him.
Felix Frankfurter: Suppose that wasn't all and say -- says, on my responsibility at this time and as the administrator of the --administered a great experience in this domain, I think that there isn't ghost of a chance of this man ever coming into a state of mind when he commit his crime, but I am not God, so I don't know. Next week somebody might discover a drug which make this strange creature really a fine upstanding citizen and a poet (Inaudible)
Simon E. Sobeloff: Your Honor --
Felix Frankfurter: What would you say to that?
Simon E. Sobeloff: I -- I hope you won't think presumptuous, but don't you think we better stick to this case?
Felix Frankfurter: Well, I want to know what this case is.
Simon E. Sobeloff: No --
Felix Frankfurter: (Voice Overlap) --
Simon E. Sobeloff: -- but this case is not such a case as --
Felix Frankfurter: (Voice Overlap) -- is this the case in which the Government comes and says, we have not surrendered our right to try him under an indictment validly found.
Simon E. Sobeloff: Right.
Felix Frankfurter: Is that the Government's case?
Simon E. Sobeloff: That's right.
Felix Frankfurter: I can understand that. I cannot understand, leading me out in the (Inaudible) and say, well, he may never be tried, but we have the power to go (Inaudible) to the next step.
Simon E. Sobeloff: I will say that there may come a time, as Judge Magruder said in his testimony before the Senate, it's conceivable that in a particular case there may come a time when under the constitutional guarantee of a fair trial, you can't delay it any longer. For instance, what this Court did in the (Inaudible) case recently. You concluded that the passage of, I think it was 10 or 11 years, and -- and to prove in the absence of certain witnesses made it impracticable to conduct a trial, you affirmed the dismissal of the indictment. A court could always, in a proper case, do that. You don't have such a problem here. I can imagine problems of that sort arising in extreme cases. You don't have any such thing here. You have here a finding that the man is not presently triable, that his prognosis is bad. Nobody says that he'll -- he will never be tried. This very case, the man has had remissions. He turns around and he's better and then turns around he's worst, and who has the wisdom and the foresight to know. The doctors don't know and I don't think that the courts are called on to speculate abstractedly about a situation that's -- that's not before you. What you have here now is a man to derange to stand trial. He has twice held up post offices by -- in armed robberies. This is not a sneak -- sneak thief who has come in and just picked up roller stamps. He has threatened with a gun the post office clerk. He has done that twice. Even the doctors, upon who we don't particularly rely, agree that the likelihood is that he would repeat that conduct. He has no specific hostility to the president or to the postmaster general and maybe not even to that post office clerk, but he goes about his business and the business like way with a gun. Now, you don't have to have a specific hostility. He is still a menace. He is still a danger. You have a finding by two courts that he is dangerous and under those circumstances to say --
Stanley Reed: Well, you have -- you have something else to add don't you, Mr Solicitor General --
Simon E. Sobeloff: That the State --
Stanley Reed: -- who will probably require indefinite hospitalization.
Simon E. Sobeloff: Exactly true. That's true. But --
Stanley Reed: So -- so far as any one can see now the finding is that he will be held for the indefinite future.
Simon E. Sobeloff: For an indefinite time. Now, when you say the indefinite future, that's not permanent either, you know. It's indefinite, it's indefinite, nobody knows. Nobody knows. Now, you may have a case at sometime where it's no longer fair to hold the man, but even then, you still have the problem of what to do with him. When the State won't take him, do you just dump him? Is it --
Stanley Reed: Well, as I -- as I understand under the statutes, you keep --
Simon E. Sobeloff: Exactly.
Stanley Reed: The United States keeps him.
Simon E. Sobeloff: We would -- we would keep him. Now -- and wouldn't be an absurd result to say that a sovereignty that has a right to enact criminal laws and to make arrests of violators and to take them into detention, finding that it can't proceed with a trial and yet has the man on his hands, as Judge Magruder says, we have a bear by the tail.
Stanley Reed: For an indefinite period.
Simon E. Sobeloff: For an indefinite period. And the State has offered the man and says, no, and nothing else develops. It's possible that the State later would take him, if so, that would change the situations, possible that the man may have a remission and would -- would no longer be dangerous, you'd have a different case, but this condition continues. What must a sovereignty like the United States do? Can it only dump him? Can it also make a -- a reasonable provision for his safety and for the safety of the public?
Felix Frankfurter: You wouldn't make this tremendous -- the Government can process the indictment, which is it?
Simon E. Sobeloff: I don't know. I'd have a closer case.
Felix Frankfurter: (Inaudible)
Simon E. Sobeloff: I'd have a closer case. I'm not ready to conceive that case either.
Felix Frankfurter: You're not even ready to --
Simon E. Sobeloff: No, sir.
Felix Frankfurter: -- do that?
Simon E. Sobeloff: No, sir. Now, I'll tell you why, Your Honor. The problem of an orderly disposition of this man might still be a valid reason for further detention. For this reason, the fact that you're no longer going to try him because you're now processing the case, it doesn't terminate the problem of the Government which has this man in its custody. And Congress isn't precluded from making a sensible it and reasonable and I say just a moral decision that he shall not be dumped and set at large to commit further depredations against the United States, against himself, against the general public. It certainly is within the competence of the United States to do that.
Stanley Reed: In fact, you have a statute to that effect, don't you?
Simon E. Sobeloff: That -- that is the statute here. That is the statute. Your Honors will recall the language that I think was used by the Court of the Hoke case, the case in which the Court upheld the validity of the Mann Act and the problem constitutionally was not unlike this. It was a question of how far the Federal Government can enter into what is normally a subject of state regulation pertaining to the morals, good order and I think it was Mr Justice Johnson who said and I forgot who the justice is.
Speaker: McKenna.
Simon E. Sobeloff: “Our dual form of government has its perplexities, State and nation having different spheres of jurisdiction, as we have said, but it must be kept in mind that we are one people and the powers reserved to the States and those conferred on the nation are adopted to the exercise whether independently or concurrently to promote the general welfare, material and moral.” Now, I don't derive a greater power from the general welfare clause, but I think that clause is instructive as to how to -- to view these several grants and try to find a -- a rational integration where possible and not say that the United States is driven to doing what in the judgment of these judges who had practical experience with the problem and the judgment of Congress is the only reasonable and fair and safe thing to do. Now, as has been indicated here, I think that the criminal power of the Government raises as a necessary corollary the right to make provision for the disposition of men who come lawfully into the custody of the United States or violating its laws and that would be sufficient and certainly sufficient in this case. But in addition to that, there are other provisions of the Constitution which lend some support. Judge Huxman said, in his Tenth Circuit dissent, he said that common principles of humanity require the Government having the insane person in its custody not to abandon him without some suitable provision preferably by surrendering him to the State, but when the State will not take him, then in some other manner. Now, there are many familiar examples of the Government dealing with respect to people that have a special relation to it in a manner that it could not deal with him if they were just members of the general public. If this were a case, and I think hypothetically, this case was put by a member of the Court by Mr. Burrell, if this were a case, where Ohio fails to make a disposition of an insane person within its borders and the Government said, “Well, if Ohio won't do it, we'll do it.” I think we'd all unhesitatingly answer, that's Ohio's business and not the business of the United States. But if the United States has a special relation to this man, he is coming to its lawful custody or a violation of the law.
Felix Frankfurter: Or if he shot a judge, a federal judge.
Simon E. Sobeloff: If he shot a federal judge or if he tried to shoot that post office clerk even such a nimble interest of the United States is not unworthy.
Felix Frankfurter: Even the case of a judge of this Court has problems.
Simon E. Sobeloff: Well, but they --
Felix Frankfurter: (Inaudible)
Simon E. Sobeloff: -- they came out all right.
Felix Frankfurter: (Inaudible) he was a judge.
Simon E. Sobeloff: But they came out all right in that case --
Felix Frankfurter: Yes.
Simon E. Sobeloff: -- as I recall it.
Felix Frankfurter: What I'm suggesting is that even a mere (Inaudible) would be a different problem.
Simon E. Sobeloff: Well, the --
Felix Frankfurter: I'm not saying it is -- it's is a (Inaudible)
Simon E. Sobeloff: Well, I -- the -- the hypothetical case was stated and I am distinguishing it from the actual case that's before us. This is not a case of the United States intruding to deal with a citizen of Ohio with whom it has no special relation. We have a very special relation with this man who has twice armed -- committed armed robbery on a post office. Now, we've got him. What do we do with him? It seems to me that Congress is not acting irrationally or arbitrarily in saying committing, and especially when Congress requires that there'd be a specific finding of dangerousness and further requires that the commitment terminate if any -- if a State is willing to take him. Now, there are instances --
Earl Warren: Can we long -- can we long had a statute also general that if government employee overseas --
Simon E. Sobeloff: Yes, sir.
Earl Warren: -- becomes insane whether he commits a crime or not?
Simon E. Sobeloff: That's right.
Earl Warren: The Government can -- can commit him for his mental condition and hold him until and unless the state of his residence or some other States --
Simon E. Sobeloff: Right.
Earl Warren: -- are willing take him over.
Simon E. Sobeloff: That's --
Earl Warren: And the courts have held that that --
Simon E. Sobeloff: That's valid.
Earl Warren: -- that's all right.
Simon E. Sobeloff: Yes, and that -- that is a recognition that where there is a special relation between --
Earl Warren: Yes, that's right.
Simon E. Sobeloff: -- the Government and him, it can -- it can deal with him better. It can regulate -- regulate.
Hugo L. Black: I suppose your emphasis on the dangerousness of the man and the Government have --
Simon E. Sobeloff: Well --
Hugo L. Black: -- the dangerous nature of the man's character --
Simon E. Sobeloff: Yes, sir.
Hugo L. Black: -- the fact that he might shoot somebody or hurt somebody --
Simon E. Sobeloff: Yes.
Hugo L. Black: -- has to be combined in your argument with the fact that he is insane --
Simon E. Sobeloff: Yes, sir.
Hugo L. Black: (Inaudible)
Simon E. Sobeloff: Oh, yes, oh yes.
Hugo L. Black: (Inaudible)
Simon E. Sobeloff: Oh, yes.
Hugo L. Black: It's not --
Simon E. Sobeloff: Oh, yes.
Hugo L. Black: the mere fact that --
Simon E. Sobeloff: Oh, no, no, no.
Hugo L. Black: -- he may be a dangerous man and the State won't take care of him.
Simon E. Sobeloff: No, no, no, I -- I don't -- I don't contend that there's a category of a bad people that you can just pick up regardless of what they've done only because of what they have might do. When -- when you have got a lunatic who was shown a disposition to enter post offices with a gun, it's not an unreasonable inference that if discharged, he's going to repeat that kind of -- well, after the -- after the commission of the crime in Kansas City --
Hugo L. Black: But if that's all you have, the fact that the Government has him and he's discharged, this -- forget the (Inaudible) factor, the opinion of the charge. You get up against the question not of a conflict of law of a state but whether the Federal Government from insanity alone has power.
Simon E. Sobeloff: No, no, I -- I would conceive at once that if -- it was just insanity, nothing else. We have nothing to do with it. It's because having committed a violation of federal law and coming into the custody of a government and being dangerous to discharge the Government --
Hugo L. Black: Do you -- do you add one another thing?
Simon E. Sobeloff: And as -- and the State won't take him.
Hugo L. Black: One other thing.
Simon E. Sobeloff: What is the other, Your Honor?
Hugo L. Black: There is a pending charge against him --
Simon E. Sobeloff: Yes.
Hugo L. Black: -- that may be tried in the future.
Simon E. Sobeloff: That's right. I'm willing for this case to argue that. I -- I don't -- I don't want to conceive the other because there may be cases where -- where there -- there is still the problem, but you don't come anywhere near that -- that problem. You don't come to the verge of that in here certainly. There is the possibility of a trial. Nobody is prepared to say that he'll never be tried or never be well enough to be tried.
Felix Frankfurter: Well, if that -- if that's this case, as I believe it to be, then that's the case to be decided, not a case where the Government discharging its special relation to him by dismissing the indictment.
Simon E. Sobeloff: Your Honor, I didn't suggest that hypothesis and these hypothetical cases --
Felix Frankfurter: Well, I know.
Simon E. Sobeloff: -- are suggested to me.
Felix Frankfurter: One has -- one has to consider the reach of the statute. If this statute is here, the state government -- by the Government of somebody who is now still under responsibility to it, you've got one of which?
Simon E. Sobeloff: Well --
Felix Frankfurter: The emphasis on the fact that Ohio won't do it that he's dangerous, all that presupposes that the states are indifferent to danger by -- against its citizens by another citizen and that is not the hypothesis on which the legislation to be sustained.
Simon E. Sobeloff: I agree wholly with that and if all that was present was a claim by the Government that the States are indifferent and therefore, we all assume their role. I couldn't defend it but that's not this case. Now, may it please the Court, in preparing this case, I -- I reread the McCulloch case, and it gave me a sense of assurance that our approach is correct. The whole spirit of -- of that decision is that you don't interpret the Constitution of the United States in a crimping limited wayYou don't reach out for new jurisdiction that's not granted, but when a power has been granted to the Government, anything that reasonably is desirable, necessary in the sense of desirable to execute that power is within the implied power.
Hugo L. Black: But when it ends, that raises a different question.
Simon E. Sobeloff: That's right. When it ends, it raises a different question, I -- I can see that. And the question that you got to decide here is, does this go too far.
Hugo L. Black: What?
Simon E. Sobeloff: Does this go too far?
Hugo L. Black: Is -- is it that that of the question that Justice Frankfurter suggested that you have a man, that the Government has the right to try him for violation of federal statutes. He is insane and dangerous. The Government has him there and has the right to hold him to -- to have trial and the findings are that -- not that he will never get all right, but that for sometime, not known, he -- the Government had him on his hands.
Simon E. Sobeloff: Yes.
Hugo L. Black: I can -- I can understand that. I don't know what about the other, but I can understand that much better than the one after -- after the Government relation to it. (Voice Overlap) --
Simon E. Sobeloff: He sees it. I -- I can well see that the -- the reasonableness of that distinction and I'm not pressing for that because it isn't necessary in this case. I'm just not conceding it because I don't know what -- what may follow in some other case but I can -- and I can understand your reluctance in writing an opinion in a case like this, not -- not to -- to leave it wide open. But certainly as far as we have to go here, the Court can go with -- with assurance. Now, Congress is the judge of a practical necessity of this measure. Congress has acted on the best advice that is imaginable in a situation like this. It is exerted the least possible power adequate to the end proposed. It has shown great deference to the State if it is willing to take him. The findings of fact concurred in by the two courts below are entitled to respect and should not be overwritten by this Court, and I think that with great respect, I submit that the pleas ought to be affirmed.
William J. Burrell: If it please the Court, I'm willing to have just a couple of minutes, I would like to --
Earl Warren: You may, yes.
William J. Burrell: -- say a few words in conclusion. Of course, it is not our position and in a respect that we want to turn or would cause to turn a dangerous person loose on the public. I think it's important to note that in this case at least the State of Ohio that he claimed has jurisdiction to determine what should be done with this man. I thought it was safe to release him and we are not taking the position. We think that that's sufficient if that's the proper finding, if that's the Court, the probate court there that have the right to make that finding. And I don't think as Justice Frankfurter has said that we have any right to assume that the States are unmindful of their responsibilities in their care of the -- of the sick and of the insane. And I think there is a second point that I would -- would like to make and that is the -- the question of whether or not the charges against him are dismissed under his commitment and under the provisions of it, it makes no difference whether the charges remain pending or not. He still will continue to be held by the United States.
Hugo L. Black: Then, you could throw out a writ of habeas corpus (Inaudible) if they were to dismiss and raise this issue.
William J. Burrell: If -- well, that -- that is possibly true, Your Honor, but we did wish to point out that the provisions of his commitment are in no way related to the pendency of the charges against him or whether or not an indictment remains against him. And for all those reasons, we certainly not wanting to cast a man that's dangerous on the public, but Ohio has found him to be safe to be at large and we think that is --
Earl Warren: Mr. Burrell, the Court is aware of the fact that you accepted this appointment from the District Court without compensation and defended this man's rights in the trial court. You accepted the same kind of an appointment in the Court of Appeals, defended his rights there and that you come here by our appointment and done the same thing. We want to thank you and I want to say to you that the cause of justice is always greatly enhanced when a lawyer will undertake without compensation to himself to defend the rights of a -- of a helpless penniless person. We thank you.
William J. Burrell: Thank you very much.