UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

HINCKLEY JR., JOHN W


97-3183a

D.C. Cir. 1999


*	*	*


Wald, Circuit Judge: In early December 1997, St. Eliza- beths Hospital
("Hospital") in Washington, D.C., filed a letter  notifying the
district court that it had approved a supervised  six-hour outing for
John W. Hinckley, Jr., an insanity acquit- tee, to eat a holiday
dinner with his parents and a companion  on December 29, 1997, in a
designated private home. The  Hospital planned to transport Hinckley
in a hospital van, in  the custody of two Hospital employees, to the
private home,  where he would remain in the line of sight of a
Hospital  escort at all times.1 The United States Attorney opposed
this  plan and asked the district court to hold a hearing under D.C. 
Code s 24-301(e), which requires a hearing when the Hospi- tal
proposes the "conditional release" of an insanity acquittee  and the
United States objects to it. Hinckley argued that the  outing was not
a "conditional release" under the statute and  that the district court
had no jurisdiction to approve or reject  the supervised visit.2 The
district court ruled that the visit  was a "conditional release" and
held the statutorily prescribed  de novo hearing under section 301(e)
to determine whether  Hinckley's condition "warrants his conditional
release ...  under such conditions as the court shall see fit." D.C.




__________

n 1 The details of this plan were submitted to the court and appear  in
the sealed record.


2 The Hospital was, however, obligated to notify the district court 
and the United States Attorney of Hinckley's outing under the  terms
of a stipulation entered into by the Hospital and the govern- ment in
1987, discussed below. See Joint Appendix ("J.A.") at 77.


s 301(e). On December 15, 1997, the district court found  Hinckley not
eligible for conditional release.


The sole question we decide on this appeal is whether the  proposed
six-hour outing in the company of Hospital employ- ees is in fact a
"conditional release" within the meaning of  section 301(e) over which
the district court has jurisdiction to  approve or reject.3 We
conclude that it is not and according- ly vacate the judgment of the
district court.


I.


Hinckley attempted to assassinate then-President Ronald  Reagan on
March 30, 1981, in the driveway of the Washing- ton Hilton Hotel. He
shot and wounded the President, as  well as Presidential Press
Secretary James Brady, Secret  Service Agent Timothy McCarthy, and
Metropolitan Police  Officer Thomas Delahanty. During his criminal
trial, Hinck- ley presented evidence that he suffered from a mental




__________

n 3 We hold that we do not have jurisdiction to review the propriety 
of Hinckley's proposed outing under the relevant District of Colum-
bia statute, and thus we do not consider the potential use of the 
highly deferential standard of review applicable to the Hospital's 
treatment decisions announced in Tribby v. Cameron, 379 F.2d 104 
(D.C. Cir. 1967), and advocated by our dissenting colleague. Since  we
are not presented with the issue, we express no opinion on  whether
the United States might have standing as an aggrieved  party under the
Administrative Procedures Act (or any other  provision of law in the
same genus) to challenge the Hospital's  therapeutic decisions


Hinckley also argues that the district court judge should be  removed
from this case pursuant to 28 U.S.C. s 144 because her  decisionmaking
has been tainted by information regarding Hinck- ley's condition that
is more than 10 years old. However, a district  court exercising
proper jurisdiction under section 301(e) may take  into account a
patient's past record, and in any event, nothing in the  record on
appeal demonstrates that this judge has been unable to  rule fairly or
has otherwise compromised the appearance of justice.  See United
States v. Wolff, 127 F.3d 84 (D.C. Cir. 1997). Therefore,  we deny
Hinckley's request to transfer his case to another judge.


at the time of the attack, and a jury subsequently found him  not
guilty by reason of insanity. He was committed in 1982  to St.
Elizabeths Hospital, where he has remained in resi- dence ever since.
The District of Columbia statute under  which Hinckley was committed,
D.C. Code s 24-301, estab- lishes the circumstances in which insanity
acquittees can be  "unconditionally" or "conditionally" released from
the hospi- tal. Specifically, section 301(e) provides that the
district  court in which a patient was tried and committed must 
approve or reject the Hospital's certified recommendation  that the
patient be "conditionally released under supervision."  The court can
hold a hearing on the matter sua sponte if it so  chooses, but it must
hold a hearing if the government prose- cutor objects to the


In 1987, the Hospital filed notice with the district court  under
section 301(e) that it proposed to grant Hinckley a  conditional
release, in the form of an outing off Hospital  grounds unaccompanied
by Hospital personnel, as part of his  continuing therapy. The
Hospital subsequently withdrew  this plan when a court-ordered search
of Hinckley's room  turned up evidence which Hinckley had apparently
concealed  from his therapists, representing, in the opinion of
Hospital  officials, symptoms of a continuing and potentially
dangerous  illness.4 After the Hospital withdrew its 1987
notification, the  Hospital and the United States Attorney entered
into a  "Stipulation," whereby the Hospital agreed to provide two 
weeks' written notice to the district court, the United States 
Attorney, and Hinckley's lawyer any time the Hospital pro- posed to
release Hinckley "from the grounds of St. Elizabeths  Hospital
accompanied by Hospital personnel." J.A. at 77. In  1988, the Hospital
notified the district court, pursuant to the  1987 Stipulation, that
it planned to grant Hinckley a half-day  off-campus visit in the
custody of Hospital staff. This was  also withdrawn after the Hospital




__________

n 4 This evidence consisted of pictures of Jodie Foster, letters 
detailing his plans for a "cult" or "family," and correspondence 
praising Hitler and Charles Manson. See United States v. Hinck- ley,
725 F. Supp. 616, 622 & n.13 (D.D.C. 1989).


Attorney's office discovered more evidence that his clinical  status
had improved less than the Hospital originally thought.  J.A. at
309-11.


Not until December of 1997 did the Hospital again propose  to allow
Hinckley off Hospital grounds--again, only for a  brief social visit
with his parents (and a companion) in the  custody of Hospital staff.
St. Elizabeths' Hospital Review  Board, which issues conditional
release certifications under  section 301(e), decided that such a
supervised visit was the  next appropriate step in Hinckley's therapy
because he has  lived in a minimum security ward at the Hospital since
1992  and travels the Hospital grounds without escort.5 This visit 
requires a "B-City" pass because it is a "Class B" privilege,  see
footnote 5, involving excursions off Hospital grounds  under Hospital
supervision. See Final NIMH Report, at 87.  In compliance with the
Stipulation, on December 2, 1997, the  Review Board submitted a letter
to the court and the United  States Attorney's office notifying them
that Hinckley would  be allowed to have a holiday visit on December
29, 1997, off  Hospital grounds, with family members and his long-time
 girlfriend in a private home for up to six hours accompanied  at all
times by Hospital staff.


The United States requested a hearing, after which the  district court
barred the Hospital's planned visit, holding that  the outing was a
conditional release under section 301(e) and  concluding that "the
Court cannot find by a preponderance of  the evidence that Mr.
Hinckley will not be a danger to himself  or others should he be
permitted to cross the boundary of St.  Elizabeths Hospital under the
proposal before the Court, 




__________

n 5 The Hospital classifies its forensic patients in four groups--A, 
B, C, and D. Hinckley is presently a "Class D" patient. Class D 
patients "may be granted various levels of unaccompanied status on 
the Hospital grounds only. In practice, such patients can be by 
themselves (but only on the grounds of the Hospital) for between 2- 8
hours a day." Final Report of the National Institute of Mental  Health
(NIMH) Ad Hoc Forensic Advisory Panel, 12 Mental &  Physical
Disability L. Rptr. 77, 87 (1988) (hereinafter "Final  NIMH


even in the company of Hospital staff." United States v.  Hinckley,
984 F. Supp. 35, 37 (D.D.C. 1997) (Hinckley II).6


II.


The government7 argues that this appeal is now moot  because the
proposed visit was scheduled for December 29,  1997, a date long since
passed so that this court could grant  no meaningful relief. We
conclude, however, that the "B-




__________

n 6 The district court relied primarily upon evidence and psychiatric 
testimony submitted in June 1997, when the court heard and denied  a
motion for conditional release brought by Hinckley under section 
301(k), see D.C. Code s 24-301(k), which allows patients to bring 
habeas-type proceedings challenging the terms of their commit- ment.
That hearing came about when, in 1996, Hinckley's treat- ment team
recommended an unescorted 12-hour off-campus visit  with his family
once a month. The Hospital Review Board denied  this recommendation,
based in large part upon Hinckley's unwel- come attention in 1995-96
to a Hospital pharmacist who had report- ed that Hinckley seemed
preoccupied with her to an unhealthy  degree. See United States v.
Hinckley, 967 F. Supp. 557 (D.D.C.  1997) (Hinckley I). Hinckley filed
a section 301(k) motion and  argued that the decision of the treatment
team should be reinstated.  After the June 1997 hearing, the court
denied the motion for a  conditional release but did not address
Hinckley's eligibility for an  off-campus visit under Hospital


While the parties agree that the evidence of Hinckley's mental  status
presented in June 1997 would certainly be relevant were  judicial
review of the Hospital's decision available, we note, in light  of the
dissent's emphasis on this evidence, that it was presented in a  very
different context. Not only did the June 1997 hearing address  only
Hinckley's own request that he be allowed off-campus without 
supervision, but also at that hearing the Hospital Review Board 
opposed the plan for Hinckley's conditional release. In this case, 
the Hospital Review Board approved of and requested the issuance  of a
"B-City" pass as part of Hinckley's ongoing therapy.


7 The term "government" in this opinion refers to the United  States
Attorney. The District of Columbia has filed a brief as  amicus curiae
on behalf of St. Elizabeths, urging that a "B-City"  pass is not a
conditional release under section 301(e).


City" pass at issue here falls within the exception to the  mootness
doctrine for cases that are "capable of repetition,  yet evading
review." Murphy v. Hunt, 455 U.S. 478, 482  (1982) (citation and
quotation omitted).


In so concluding we rely on this court's decision in Friend  v. United
States, 388 F.2d 579 (D.C. Cir. 1967), in which we  held that a
revocation of a conditional release, which had been  appealed, was not
rendered moot when another conditional  release was issued during the
appeal. See id. at 581. Since  the record showed that there would
likely be only brief  periods of time in which a revocation would be
in effect for  this patient before another conditional release was
issued, we  found that the challenged revocation order was so short in
 duration as to evade review. See id. The District of Colum- bia Court
of Appeals has applied Friend to a case identical to  this one. See
Shuler v. United States, 422 A.2d 996, 997  (D.C. 1980) (court's
review of a holiday conditional release  after the holiday has passed
is not blocked because " '[t]he  issue as to the proper construction
of section 301(e) is con- tinuing and of public importance, and review
is not precluded  by mootness' "), quoting Friend, supra.


Applying the capable of repetition but evading review  standard to this
case, if there is "a reasonable likelihood that  [Hinckley] will again
suffer the deprivation ... that gave rise  to this suit," Honig v.
Doe, 484 U.S. 305, 318 (1988), his case  is capable of repetition.
Hospital doctors have indicated that  Hinckley's psychotic disorder
and major depression are in  remission, but that he still suffers from
narcissistic personali- ty disorder. See J.A. at 249 (1996 Clinical
Record). This  fact, combined with the nature and notoriety of his
assassina- tion attempt, make it abundantly clear that Hinckley faces
a  lengthy stay at St. Elizabeths Hospital. We can safely  conclude as
well, based on the parties' representations in  briefs and at
argument, that Hinckley's clinical status has not  changed since the
summer of 1996 and, that his doctors are  likely to continue
recommending "B-City" passes as the next  appropriate step in his
therapy. See Gannett Co. v. De  Pasquale, 443 U.S. 368, 377 (1979)
(publisher of two New  York newspapers is reasonably expected to be


closure orders similar to the one the newspaper is challenging 
because of the nature of its business); Jenkins v. Squillacote,  935
F.2d 303 (D.C. Cir. 1991) (7-year-old disabled public  school student
reasonably likely again to face placement in  another school and lodge
an objection). Indeed, if that is  their professional opinion, they
are bound to do so. The  government admitted as much in its brief. See
Appellee's  Brief at 28. Thus, the proposed issuance of a "B-City"
pass  to Hinckley is eminently capable of repetition.


The normal process for planning a "B-City" outing is also  of such
short duration that it could well evade review. The  1987 Stipulation
requires the Hospital to provide only two  weeks' notice before a
scheduled outing--hardly enough time  under normal court scheduling
for fullscale judicial review  and possible approval of the plan. The
government argues  that the Hospital could eliminate the risk that
future visits  would evade review by proposing an outing without any 
specific time constraints and agreeing that if the outing is  approved
it would be scheduled for two weeks after a final  court ruling. In
response, counsel for the Hospital said at  oral argument that the
Hospital does occasionally draw up  long-term plans, for a period of a
year or more, in which  patients are granted periodic "B-City"
outings, but did not  indicate whether such a long-term plan would be
feasible for  Hinckley. The record before us and the tortured legal
histo- ry surrounding his commitment does not suggest that the 
Hospital would approve open-ended visits for Hinckley with- out time
constraints or particularized approval by the Hospi- tal Review Board.
The government itself argues that the  terms under which Hinckley
should be able to leave the  Hospital grounds are "highly fact
specific," Appellee's Brief at  28, depending on Hinckley's current
condition and the details  of the outing that is proposed. In fact,
prior to the Hospital's  approval of this supervised visit, the
Hospital rejected a more  extensive open-ended plan that would have
allowed Hinckley  to visit with his parents, without the presence of
Hospital  staff, for 12 hours at a time once every month. In similar 
circumstances, we have advocated a commonsense reading of  the record


review, concluding that it may do so, even where there is no 
assurance that time constraints will always preclude review.  See,
e.g., Christian Knights of the Ku Klux Klan Invisible  Empire, Inc. v.
District of Columbia, 972 F.2d 365 (D.C. Cir.  1992) (city decision
regarding a permit for a march evades  review when the decision is
likely to be issued 15 days before  the event and safety concerns are
likely to arise even later);  Washington Post v. Robinson, 935 F.2d
282 (D.C. Cir. 1991)  (sealing of a plea agreement evades review in
part because of  importance of public access to court proceedings,
even though  a sealing order might stay in effect for a long


Finally, "both Supreme Court and circuit precedent hold  that orders of
less than two years' duration ordinarily evade  review." Burlington N.
R.R. Co. v. STB, 75 F.3d 685, 690  (D.C. Cir. 1986), citing Southern
Pac. Terminal Co. v. ICC,  219 U.S. 498, at 514-16 (1911); In re
Reporters Comm. for  Freedom of the Press, 773 F.2d 1325, 1329 (D.C.
Cir. 1985).  Even if the Hospital were to fashion a long-term "B-City"
 plan for Hinckley, the plan is not likely to cover a two-year  period
nor to be submitted two years in advance.8 Accord- ingly, we find that
this case is "capable of repetition yet  evading review."


III.


We turn then to the crux of the appeal, the statutory  question of
whether section 301(e) applies to off-grounds  therapeutically
approved visits into the community in the  custody of Hospital
personnel. Hinckley argues that anyone  "conditionally released under
supervision" in section 301(e) so  as to require court approval must
be a person who is released  from the custody of the Hospital; and
since Hinckley is to  remain in the custody of the Hospital for this
visit, he will not  be conditionally released and no judicial review
or approval is  required under the statute. The government contends




__________

n 8 The government argues that Hinckley could ask for expedited 
review, but we have repeatedly held that we will not consider the 
possibility of expedited review in determining mootness. See Rob-
inson, 935 F.2d at 287 n.6.


the phrase "conditionally released" under section 301(e) re- fers to
release from the Hospital's boundaries and thus  applies to any visit
off-grounds. One thing seems clear: the  term "conditionally released
under supervision," standing  alone, does not yield a "plain meaning"
that must be "en- force[d] [ ] according to its terms," Caminetti v.
United  States, 242 U.S. 470, 485 (1917), and we must resort to 
legislative history and statutory context to divine its meaning.


A.Statutory Construction


Section 24-301 of the District of Columbia Code governs  the commitment
and release of criminal defendants who are  found to be insane. In
particular instances, it vests supervi- sory powers in the judiciary
over patients' ingress to and  egress from St. Elizabeths. As the
District of Columbia  Court of Appeals has observed, "[T]his
jurisdiction has con- cluded legislatively that the judiciary is best
suited to per- forming 'the value-weighing function of balancing the
unpre- dictable risks to individual liberty and public safety' posed
by  the release decision." DeVeau v. United States, 483 A.2d 307,  311
(D.C. 1984) (quoting Joseph Goldstein & Jay Katz, Dan- gerousness and
Mental Illness: Some Observations on the  Decision to Release Persons
Acquitted by Reason of Insani- ty, 70 Yale L.J. 225, 237 (1960)).
Sections 301(a) and (b)  address the judiciary's role in determining a
defendant's  competency to stand trial. See D.C. Code s 24-301(a)-(b).
 Section 301(c) provides that when a jury finds a defendant not 
guilty but insane, it must say so specifically. See id. s 301(c).  We
focus on the next two sections of the statute in determin- ing the
meaning of "conditional release."9


Section 301(d)(1) provides for the automatic commitment to  the
Hospital of a person acquitted on a verdict of insanity.  See id. s
301(d)(1). Subsection 301(d)(2)(A) further states:  "A person confined
pursuant to paragraph (1) of this subsec- tion shall have a hearing,
unless waived, within 50 days of his  confinement to determine whether
he is entitled to release 




__________

n 9 Although it is a fairly obvious point, we note that the parties 
here do not contest the meaning of "conditions" or "conditional";  the
debate instead focuses on what it means to be "released."


from custody." Id. s 301(d)(2)(A) (emphasis added). At the  hearing,
"[t]he person confined shall have the burden of  proof. If the court
finds by a preponderance of the evidence  that the person confined is
entitled to release from custody,  either conditional or
unconditional, the court shall enter  such order as may appear
appropriate." Id. s 301(d)(2)(B)  (emphasis added). The words
"confined," "confinement,"  "custody," and "release" are nowhere
defined. We can safely  suppose, though, that "confinement" is roughly
the opposite  of "release from custody" because of the way the terms
are  juxtaposed in the statute--e.g., a "person confined is entitled 
to release from custody." Under this statute, "custody" is  that from
which a "confined" person is released. It follows  that if we place
"release" and "confinement" at different ends  of the spectrum, with
release denoting freedom and confine- ment denoting no freedom, then
"custody" should be placed  on the spectrum much nearer to


Section 301(e) sets forth the procedure for granting a  patient
committed under this statute an unconditional or  conditional release,
and it presents the same juxtaposition  between "confined" and
"released." It begins: "Where any  person has been confined in a
hospital for the mentally ill  pursuant to subsection (d) of this
section," the Hospital  superintendent may determine that the person
is "entitled to  his unconditional release from the hospital." Id. s
301(e)  (emphasis added). For conditional releases, section 301(e) 
provides, in relevant part:


Where, in the judgment of [the Hospital] superintendent  ..., a person
confined under subsection (d) of this  section is not in such
condition as to warrant his uncondi- tional release, but is in a
condition to be conditionally  released under supervision, and such
certificate is filed  [with the clerk of the court in which the person
was  tried] and served [on the United States Attorney], such 
certificate shall be sufficient to authorize the court to  order the
release of such person under such conditions as  the court shall see
fit at the expiration of 15 days from 


the time such certificate is filed and served pursuant to  this
section; provided, that the provisions as to hearing  prior to
unconditional release shall also apply to condi- tional releases, and,
if after a hearing and weighing the  evidence, the court shall find
that the condition of such  person warrants his conditional release,
the court shall  order his release under such conditions as the court
shall  see fit, or, if the court does not so find, the court shall 
order such person returned to such hospital.


Id. s 301(e) (emphasis added). The hearing provisions made  applicable
to conditional releases are as follows:


... the court in its discretion may, or upon objection of  the United
States ... shall, after due notice, hold a  hearing at which evidence
as to the mental condition of  the person so confined may be
submitted, including the  testimony of 1 or more psychiatrists from
said hospital.


Id. s 301(e). Finally, section 301(k) provides a habeas-type  mechanism
for acquittees to challenge the terms of their  commitment: "A person
in custody or conditionally released  from custody ... may move the
court having jurisdiction to  order his release, to release him from
custody, to change the  conditions of his release, or to grant other
relief." Id.  s 301(k) (emphasis added). In sum, sections 301(e) and
(k)  continue the usage of "release" as a counterpart to "custody" 
and "confinement."


Assuming, as we do, that these terms are used consistently  throughout
the text, cf. Atlantic Cleaner & Dyers, Inc. v.  United States, 286
U.S. 427, 433 (1932), quoted in United  States v. Thompson, 452 F.2d
1333, 1345 (D.C. Cir. 1971) (the  "natural presumption that identical
words used in different  parts of the same act are intended to have
the same meaning"  yields when "there is such variation in the
connection in  which the words are used as reasonably to warrant the 
conclusion that they were employed in different parts of the  act with
different intent"), we surmise from the statute that a  person who is
conditionally released under section 301(e) is no  longer confined nor
in the Hospital's custody. We also  observe that Congress did not
indicate the terms "custody," 


"confinement" and "release" are to be construed in other than  their
ordinary sense, see Palestinian Information Office v.  Shultz, 853
F.2d 932, 937 (D.C. Cir. 1988), so we can derive  some guidance from
the dictionary. To "confine" is "a: to  keep in narrow quarters:
imprison" and "b: to prevent free  outward passage or motion of."
Webster's Third New Int'l  Dictionary 476 (1976). "Custody" similarly
betokens re- straint but it is a more specific form of it: custody is
defined  as "a: the act or duty of guarding and preserving." Id. at 
559. It is clear, then, that one who is "released" under this 
statute--"set free from restraint [or] confinement," id. at  1917--is
no longer under the restraint of custody nor con- fined in his


The cornerstone of our dissenting colleague's argument is  that under
this plan, Hinckley will in fact be "released," i.e., 




__________

n 10 Although none of the parties argue here that "conditionally 
released under supervision" in section 301(e) and "conditionally 
released from custody" used in other parts of the statute mean 
different things, we note that the House Report accompanying  passage
of the revised section 24-301 would in any case allay any  such fear:
the report explains that in section 301(e), an acquittee is 
"conditionally released under supervision" when he is released "to a 
legal guardian or other person subject to such conditions as the 
court may impose." See H. Rep. No. 84-892, at 17 (1955) (hereinaf- ter
"1955 House Report") (emphasis added). Thus, sections 301(e)  and (k)
do not contradict each other, but rather dovetail. A patient  covered
by the statute is conditionally released if he is released,  with
conditions, from the Hospital's custody to the supervision of 


Moreover, section 301(k), added to section 24-301 in 1970 when 
Congress adopted the District of Columbia Court Reform and  Criminal
Procedure Act of 1970, Pub. L. No. 91-358, 84 Stat. 570,  specifically
cross-references the remainder of the statute (it refers  who are
"conditionally released from custody, pursuant to the  provisions of
this section"). And there is no legislative history  otherwise
discussing its choice of language, so there is nothing to  counteract
the presumption that its terms should be read the same  way as the
rest of the statute. See H.R. Rep. No. 91-907, at 73-74  (1970).


set or made free, when he travels in a Hospital van under the 
constant supervision of Hospital staff for a six-hour visit. See 
Dissent at 1. While asserting that "[i]t cannot be disputed  that if
Hinckley is allowed the proposed visit he will be  freed," the dissent
also concedes that Hinckley's so-called  freedom would come with "the
stipulations that he return to  the Hospital the same day and that he
be accompanied by  Hospital staff during the visit." Id. at 2. We
candidly do not  see how such a visit under Hospital escort is
tantamount to  being "set free" with "conditions." "Conditional"
cannot mod- ify "release" so as to obliterate the ordinary meaning of 
"release" altogether. As is true of other patients allotted "B- City"
passes, Hinckley would at all times be confined to the  presence of
Hospital personnel and subject to any restraint  they deemed necessary
on his freedom of movement during  this outing; if anything he would
be more restrained than he  currently is on Hospital grounds, where he
moves freely  without escort. The mere fact that he is allowed to
leave the  confines of the Hospital plant under such restraints does
not  mean in any legal or practical sense that he has been released 
from "custody" and "confinement."


B.Case Law Addressing Section 301 and "Conditional Re- lease"


United States v. Hough, 271 F.2d 458 (D.C. Cir. 1959), the  only case
that addresses the meaning of "conditional release"  under section
301, bolsters the point that "conditional release  from custody" or
"confinement," as used variously throughout  the statute, means
conditional release from Hospital guard or  restraint.




__________

n The dissent, generally invoking the "plain meaning" rule of 
statutory construction, argues that nothing in the text of the statute
 indicates that "under supervision" in section 301(e) should be limit-
ed to the supervision of a party other than the Hospital. We  question
whether a statute's "silence," Dissent at 2, on whether an  inherently
vague term should be construed a certain way supports  application of
the plain meaning rule. We also note that the  legislative history,
cited above, casts serious doubt on the notion  that "conditionally
released under supervision" means "conditionally  released under
continuing Hospital supervision."


In Hough, this court answered the question of whether an  individual
committed under section 301 could be permitted,  without judicial
approval, to leave the Hospital grounds on his  own without a guard or
attendant. We answered "no" and  held that such an off-grounds visit
was a "conditional release"  under section 301(e). While cautioning
that a person commit- ted for treatment is not a "prisoner," we


It does not follow, however, that the hospital authorities  are free to
allow such a patient to leave the hospital without  supervision....
[T]he statute makes one in appellant's  situation a member of "an
exceptional class of people." It  provides, generally, that the
District Court have a voice in  any termination of her confinement,
whether unconditional  or conditional.


Although the statute does not speak of temporary leaves  from the
hospital, its purpose, as we read it, is to assure  that members of
the "exceptional class" to which appellant  belongs be kept under
hospital restraint until the District  Court, in the exercise of a
discretion, reviewable by this  Court, approves a relaxation of that
restraint. We read  "conditional release" as used in the present
statute to  include the kind of temporary freedom which has been 


Hough, 271 F.2d at 462 (citation omitted) (emphasis added).  Despite
Hough's unequivocal reliance on "restraint" as the  touchstone for
deciding whether a patient has been condition- ally released, the
government, citing dictum in another case,  United States v. Ecker,
543 F.2d 178 (D.C. Cir. 1976), asks us  to expand Hough to hold that
an off-campus visit with two  Hospital escorts is also a "conditional
release" under the  statute. In Ecker, we held that a district court
reviewing the  Hospital's certificate for conditional release under
section  301(e) must employ a de novo standard of review; we were  not
presented, as we were in Hough, with the meaning of  conditional
release. Although we referred to a patient's  "cross[ing] the hospital
boundary" as the point at which a  court stops deferring to the
Hospital's judgment, we also  quoted Hough's pronouncement that the


restraint determines whether a patient has been conditionally 
released. Id. at 186. Ecker thus represents no persuasive  authority
at all for the principle that a patient has been  released from
custody when he leaves the Hospital grounds  with a Hospital escort.


So, given that Hough stands only for the proposition--at  most--that a
patient's unrestrained release into the community  is a conditional
release, we conclude that prior case law,  together with the
syntactical usage of "custody" and "confine- ment" in the statute,
compel the conclusion that a patient's  off-campus visit with Hospital
escorts (a "B-City" pass) is not  a conditional release under section
301. This has certainly  been the uniform assumption of every court in
the District of  Columbia--not to mention the government and the
Hospital,  discussed more fully below--that has ever considered a pa-
tient's motion for conditional release, a Hospital's certification  of
conditional release, or a revocation of conditional release.  See,
e.g., Ecker, 543 F.2d at 181; United States v. McNeil,  434 F.2d 502,
505 (D.C. Cir. 1970) (Bazelon, J., concurring);  Friend, 388 F.2d at
579 (D.C. Cir. 1967); Darnell v. Camer- on, 348 F.2d 64, 65 (D.C. Cir.
1965); Jackson v. United  States, 641 A.2d 454, 456 (D.C. 1994);
DeVeau, 483 A.2d at  310 n.4; United States v. Charnizon, 232 A.2d
586, 587 (D.C.  1967). The Hough court also expressly recognized the
differ- ence which we reiterate here between conditional releases  and
Hospital-accompanied off-campus excursions: it noted  that the
district court could "require that [the patient] be  restricted to the
hospital grounds, or, if outside the hospital  grounds, in the custody
or company of a hospital attendant  until such a time as the court
orders the conditional release  of [the patient]." Hough, 271 F.2d at


C.Legislative History of Section 301


The legislative history of section 301 adds weight to the  notion that
a "confined" patient is "released from custody"  only when he is
released from the Hospital's restraints or  guard. The 1955 House
Report indicates that lawmakers  rewrote section 301 because under its
predecessor, a person 


found not guilty by reason of insanity and committed to a  mental
hospital could be released solely on the basis of a  certificate from
the hospital superintendent. See 1955 House  Report, at 13. Congress
chose to place the District of  Columbia in the ranks of the states,
roughly half at the time,  that required a court order to accomplish a
release from a  mental institution. Id. "It is the opinion of the
Committee  [ ] that once a person has been excused from his criminal
act  or acts by reason of insanity he be not thereafter released  into
society until it is reasonably certain that the person has  recovered
his sanity and is no longer dangerous to himself or  others." Id.
Thus, the public safety concerns that Congress  addressed by involving
the judiciary in the release of the  criminally insane are implicated
by the release of a patient  into society and out of Hospital custody,
and it is at that point  where Hospital decisions end and court
jurisdiction takes  hold. See also DeVeau, 483 A.2d at 311 (judicial
review  under section 301(e) is to ensure that an acquittee "is well 
enough to reenter the community on a conditional or uncondi- tional




__________

n 11 Our dissenting colleague labels this history "irrelevant" be-
cause, in her view, it pertains only to court supervision of uncondi-
tonal releases and not conditional releases. That narrow a reading, 
however, ignores the broader design of the statute, and the legisla-
tive history, which define, in a series of contexts, the various 
junctures at which judicial supervision of the release of insanity 
acquittees is necessary in order to safeguard the public--regardless 
of whether the release is "conditional" or "unconditional." See 1955 
House Report, at 13-14. Moreover, the section of the House  Report
which we cite to show that Congress was motivated by the  public
safety issues posed by an insanity acquittee's release into  society
does specifically address conditional releases as well. The  Report
says that the provision for court-supervised conditional  release was
intended to address the same public safety concerns  posed by
unconditional reentry into society, while allowing "psychi- atric
aftercare supervision" for those who might not otherwise be  eligible
for unconditional release. See id. (court-supervised condi- tional
release would "[g]ive to the public an increased feeling of 


D. Past Practice and Procedure


Indeed, a demarcation line between a Hospital escort and  supervision
by some other third party in the community has  signaled the point at
which the requirements of conditional  release come into play since
conditional releases first became  available for insanity acquittees
in 1955. We disagree with  our dissenting colleague that 43 years of
unchallenged past  practice is irrelevant in that respect. The very
existence of  the 1987 Stipulation--whose sole purpose is to require
the  Hospital to give notice when Hinckley will be off Hospital 
grounds--suggests that the government understood then that  the
Hospital would not otherwise have to give such notice for 
Hospital-accompanied visits. Moreover, after the Hospital  was
criticized in 1986 for allowing Hinckley to leave the  grounds for a
day with a Hospital escort, Congress in 1988  amended the Federal
insanity defense law specifically to do  what the District of Columbia
law does not: to provide  prospectively12 for court supervision of all
excursions by  Federal insanity acquittees off Hospital grounds. See
18  U.S.C. s 4243(h); see also 133 Cong. Rec. 16905 (statement of 
Rep. Gekas) (Hinckley's supervised outing "is when we first 
discovered that ... decisions for furloughs or off campus  excursions
... from the hospital ... [are] subject only to the  approval of the


Since October 1, 1996, Hospital staff have made 451 trips to  D.C.
General Hospital with eligible medium and maximum  security patients
on "B-City" privileges, as well as 56 other  community visits to
attend wakes, funerals, or special medical  appointments at other
facilities. See District of Columbia's  (D.C.) Brief at 10-11. In the
same period of time, the  Hospital's Recreational Therapy Branch has
taken minimum  and medium security patients on 359 "B-City" privilege
trips  to museums, theaters, bowling alleys, arboretums, amusement 
parks, and shopping. The Hospital also takes groups of  patients on
trips--with a maximum ratio of one staff member 




__________

n 12 The government does not dispute that section 4243(h) applies  only
to Federal insanity acquittees committed after 1984, when the 
Insanity Defense Reform Act, 18 U.S.C. ss 4241 et seq., was  enacted.
See United States v. Crutchfield, 893 F.2d 376 (D.C. Cir.  1990).


for every five patients--four times per month. See id. &  nn.8-9. Yet
the government has not previously objected to  any of these outings
nor to the countless "B-City" passes  issued before 1996. In response
to a query at oral argument  about whether the government would in the
future seek to  invoke court jurisdiction over all "B-City" passes,
govern- ment counsel answered equivocally that there might be other 
situations in which the government thought court intervention  would
be necessary, based on concerns for public safety. But  it seems to us
that Congress has already struck a balance in  the D.C. law between
treatment for the criminally insane and  the public safety by defining
the juncture where court ap- proval is necessary as the point of a
patient's "reentry into  society," not his stepping off Hospital
grounds with a Hospital  escort. See also DeVeau, 483 A.2d at 311
(judicial review  under section 301(e) is to ensure that an acquittee
"is well  enough to reenter the community on a conditional or uncondi-
tional basis"). In addition, tort law provides strong incentive  for
the Hospital to make sure it is acting responsibly in  issuing
"B-City" privileges. See White v. United States, 780  F.2d 97, 103
(D.C. Cir. 1986) (" 'One who takes charge of a  third person whom he
knows or should know to be likely to  cause bodily harm to others if
not controlled is under a duty  to exercise reasonable care to control
the third person to  prevent him from doing such harm.' ") (quoting
Restatement  (Second) of Torts s 319 (1965)). A "B-City" privilege, in
 allowing the Hospital to monitor how the patient acts outside  the
Hospital while keeping the public safety firmly in mind by  ensuring
he is under Hospital control at all times, serves as a  crucial
precursor to a patient's reentry into larger society.  Final NIMH
Report, at 81 ("Therapeutic passes are [ ]  symbolic of a forensic
hospital's legitimate mission to rehabili- tate its patients, as well
as provide the security necessary to  protect the public."); see also
District of Columbia Dep't of  Human Serv., Policy and Procedure, CMHS
Policy  50000.330.1 (superseding St. Elizabeths Hospital Policy no. 
3300.1A) (directing the Hospital to classify, "for security  purposes,
patients hospitalized pending or as a result of  criminal


perhaps the most notorious patient at the Hospital, the  government
now argues 43 years after section 301(e)'s enact- ment, that a
"B-City" pass requires court approval. We do  not believe it has made
its case.


Conclusion


We conclude that the Hospital's issuance of a "B-City" pass  to
Hinckley does not require the approval of the district court  under
section 301 because it is not a "conditional release  under
supervision." A conditional release under section  301(e) is a release
from the Hospital's restraint and guard,  and, as with all "B-City"
passes, Hinckley will be guarded  and his movement restrained by the
Hospital's escorts, as  well as by the limited nature of the outing.
Accordingly, we  vacate the judgment of the district court barring
access to  Hospital-approved "B-City" privileges in which he is accom-
panied by Hospital personnel.


So ordered.


Karen LeCraft Henderson, Circuit Judge, dissenting:


Section 24-301 of the District of Columbia Code (section  301) requires
that someone like appellant John W. Hinckley,  Jr., who has been
acquitted of a crime "solely on the ground  that he was insane at the
time of its commission, ... shall be  committed to a hospital for the
mentally ill until such time as  he is eligible for release." s
301(d)(1). Subsection (e) speci- fies the circumstances under which a
person so committed is  entitled to "release from the hospital,"
either conditionally or  unconditionally. A "conditional release" is
authorized only on  the hospital superintendent's certification that
the patient "is  in a condition to be conditionally released under
supervision."  s 301(e) (emphasis added). The certification must be
filed  with the court and served on the United States Attorney 
fifteen days before the proposed release. The court must  then find
"that the condition of such person warrants his  conditional release"
and issue an order directing "release  under such conditions as the
court shall see fit." s 301(e).1  The district court held that the
off-premises trip proposed for  Hinckley--a six-hour visit with his
parents and a friend at a  private house accompanied by staff from St.
Elizabeths Hos- pital (St. Elizabeths or Hospital)--is a conditional
release  "sufficient to trigger the safeguards of judicial review
pursu- ant to 24 D.C. Code s 301(e)." United States v. Hinckley,  984
F. Supp. 35, 36 (D.D.C. 1997). Because the plain mean- ing of section
301 supports the district court's conclusion, I  dissent from the


The proposed visit with Hinckley's parents is plainly a  "release from
the hospital." The word "release" has various  definitions, see XIII
Oxford English Dictionary 558-59 (2d ed.  1989), but one of its
primary contemporary meanings, and one  plainly applicable to
confinement in a mental hospital, is "[t]o  set or make free, to
liberate, deliver of (now rare) or from  pain, bondage obligation,
etc," id. at 558 (definition 6.a) (italic 




__________

n 1 An unconditional "release" is authorized when the Hospital 
superintendent certifies and the court subsequently finds that a 
patient "has recovered his sanity" and "will not in the reasonable 
future be dangerous to himself or others." s 301(e).


original). It cannot be disputed that if Hinckley is allowed  the
proposed visit he will be freed, liberated and delivered-- and
therefore "released"--from the Hospital, albeit with the  stipulations
that he return to the Hospital the same day and  that he be
accompanied by Hospital staff during the visit.  These stipulations do
not render the proposed trip any less a  "release"--they merely make
the release "conditional" and  therefore subject to section 301(e)'s
conditional release re- gime set out above.


It is well established that a conditional release need not be 
permanent or indefinite. In Hough v. United States, 271  F.2d 458
(D.C. Cir. 1959), the court specifically "read 'condi- tional release'
as used in the present statute to include [a]  kind of temporary
freedom," notwithstanding that "the stat- ute does not speak of
temporary leaves from the hospital."  271 F.2d at 462. Further, the
statute on its face provides  that conditional release be, as here,
"under supervision." The  statute neither defines "supervision" nor
distinguishes be- tween supervision by Hospital staff and by someone
else and  I see no reason to import such a distinction. Because the 
statute "is silent as to the conditions of confinement or  treatment"
and "provides no specific test whereby one can  determine whether
rehabilitative therapy, which is clearly the  province of the hospital
alone, amounts to conditional release,  which is the province of the
court as well," "we must interpret  the general language used in light
of the legislative purpose."  Id. The general policy underlying
section 301 is "to provide  treatment and cure for the individual in a
manner which  affords reasonable assurance for the public safety," id.
at 461,  and the specific purpose of subsection (e) is to "to assure
that  members of appellant's exceptionally dangerous class are  'kept
under hospital restraint until the District Court, in the  exercise of
a discretion, reviewable in this Court, approves a  relaxation of that
restraint,' " United States v. Ecker, 543  F.2d 178, 186 (D.C. Cir.
1976) (quoting Hough, 271 F.2d at  462). This purpose is well served
by requiring court approval  of attended as well as unattended trips
by a member of the  "exceptionally dangerous class," based on the
required deter- mination "that the individual has recovered


that under the proposed conditions--or under conditions which  the
statute empowers the court to impose 'as (it) shall see  fit,'--'such
person will not in the reasonable future be danger- ous to himself or
others.' " Hough, 271 F.2d at 461 (quoting  s 301).2 The statute
should therefore be interpreted to apply  here to Hinckley's proposed
attended visit with his parents.


Apart from the statutory language and purpose, this court's 
description of a section 301(e) "release" as a "relaxation" of 
"hospital restraint," Ecker, 543 F.2d at 186; Hough, 271 F.2d  at 462,
also manifests that the term encompasses attended  trips outside the
hospital grounds. The "restraint" being  relaxed is that a person has
been "committed to," that is,  "confined in" "a hospital for the
mentally ill." s 301(d)(1),  (e). Any departure by a patient from the
Hospital premises-- and consequent public exposure--is a
"relaxation,"--i.e., a  "[p]artial (or complete) remission," XIII
Oxford English Dic- tionary 554 (2d ed. 1989) (definition 1.a)--of the
restraint.  Each such departure therefore requires court approval


My reading of section 301(e)'s plain language to require  approval of
any departure from the Hospital grounds com- ports with the court's
previous construction of the same  provision in United States v.
Ecker, 543 F.2d 178, 187 (D.C.  Cir. 1976). In Ecker, the court
rejected the patient's conten- tion that judicial review of the
Hospital's conditional release  decision should be under the same
deferential standard "sug- gested" in Tribby v. Cameron, 379 F.2d 104
(D.C. Cir. 1967),  for reviewing the adequacy of a patient's
in-hospital treat- ment.3 The Ecker court expressly based its




__________

n 2 It makes no difference that an attended release may be thera-
peutic or a necessary precursor to broader liberty, as the majority 
seems to suggest, Majority Op. at 19-20. This is clear from Hough. 
See 271 F.2d at 462 ("We readily grant that periodic freedom may  be
valuable therapy.... We do not, of course, lose sight of the 
hospital's view that such temporary freedom is often an essential 
part of the therapeutic process....").


3 The Tribby court stated:


Tribby standard on the distinction between decisions that  affect
whether a patient is to leave the hospital premises and  those that do
not:


The narrow standard of review described in Tribby only  applies when
public safety is not a factor; it has no  applicability in release
proceedings (conditional or uncondi- tional) under section 301(e). To
anticipate a bit what may  be distilled from our decisions in this
field, which we  discuss below, the agency analogy is only pertinent
within  the hospital grounds. In that area we and the district  court
may give a degree of deference to the hospital's  judgment equivalent
to the deference we accord agency  action; when, and if, the patient
is to cross the hospital  boundary, then other factors affecting the
public come into  play, and both the statute and our decisions impose
a  different role and far heavier responsibilities on the courts.


543 F.2d at 183 (footnote omitted; emphasis added).4 The  Ecker court
then held that the Hospital's decision to seek  conditional
release--which permits a patient to "cross the  hospital boundary"--is
subject to de novo judicial review. 




__________

n We do not suggest that the court should or can decide what 
particular treatment this patient requires. The court's function  here
resembles ours when we review agency action. We do not  decide whether
the agency has made the best decision, but only  make sure that it has
made a permissible and reasonable  decision in view of the relevant
information and within a broad  range of discretion.


379 F.2d at 328.


4 The Ecker court noted that in Covington v. Harris, 419 F.2d 617 
(D.C. Cir. 1969) (en banc), "this court faced another situation where 
a district court was asked to review a medical judgment affecting 
only the internal administration of Saint Elizabeths Hospital" when  a
patient "through a writ of habeas corpus sought transfer to a less 
restrictive ward of the hospital." 543 F.2d at 183 n.11. The Ecker 
court explained that "[s]ince public safety is not a significant 
consideration where a patient seeks transfer to another ward within 
the hospital, the [Covington] court applied the standard of limited 
review announced in Tribby." Id. (citing Covington, 419 F.2d at  621)
(emphasis added).


See 543 F.2d at 183-88. Likewise here the Hospital sought to  allow
Hinckley to "cross the hospital boundary," thereby  implicating public
safety, and the same inquiry and standard  apply.


My interpretation of the statute is also consistent with the  court's
discussion in Hough of what constitutes a "conditional  release," as
is manifest from the discussion above, see supra  pp. 2-3, and with
the Hough court's specific holding as well.  In resolving one of the
two appeals before it, the Hough court  read the term " 'conditional
release' as used in the present  statute to include the kind of
temporary freedom which has  been given [Hough]," namely for her " 'to
leave Saint Eliza- beths Hospital to go to the city of Washington,
D.C., unac- companied in an effort to obtain employment.' " 271 F.2d
at  459 (quoting the Hospital Superintendent's recommendation).  There
is nothing in the Hough decision that would exclude  from the ambit of
"conditional release" the kind of temporary  (albeit less extensive)
freedom the Hospital seeks for Hinck- ley.


For the preceding reasons I would affirm the district  court's holding
that the Hospital's proposal to release Hinck- ley from its confines
is a "conditional release" subject to  judicial review under the plain
meaning of section 301(e)-- without resort to inapplicable legislative
history5 or the irrele-




__________

n 5 The snippet of history the majority quotes for the proposition 
that the Congress intended public safety to be safeguarded only  upon
an inmate's "reentry into society" is addressed not to condi- tional
release but to unconditional release which requires a finding  that
the patient "has recovered his sanity," s 2434-301(e). Com- pare
Majority Op. at 17 (quoting 1995 House Report, at 13: "It is  the
opinion of the Committee [ ] that once a person has been  excused from
his criminal act or acts by reason of insanity he not  thereafter be
released into society until it is reasonably certain that  the person
has recovered his sanity and is no longer dangerous to  himself or
others.") (emphasis added) with Ecker, 543 F.2d at 184  n.14 ("The
legislative distinction between conditional and uncondi- tional
releases ... is that only unconditional releases require a  showing
that the patient has recovered his sanity."). Nevertheless, 


vant past practice of St. Elizabeths.6 Of course, "calling it a 
conditional release does not prevent it. It simply requires  the
hospital authorities, when they decide that a patient has  reached the
stage where such freedom is necessary and  proper, to certify that
fact to the District Court and obtain an  appropriate order,
reviewable by this Court." Hough, 271  F.2d at 462. The district court
then must "fulfill its statutory  role by deciding whether or not the
evidence supports the  hospital's determination that in all reasonable
likelihood the  patient's temporary absence from the hospital under
specified  conditions will not endanger others." Id. The court below 
did just that and concluded: "With the record as it is, the  Court
cannot find by a preponderance of the evidence that 




__________

n the visit proposed for Hinckley does involve a reentry into society, 
however brief or encumbered.


6 I do not see any relevance in St. Elizabeths's past practice,  which
the majority discusses at some length. See Majority Op. at  18-20. We
cannot possibly owe deference to the Hospital in  determining the
reach of " 'the statute's grant of judicial power to  protect the
public safety.' " Ecker, 543 F.2d at 184 (quoting Hough  271 F.2d at
461). That the Hospital has long and often permitted  attended
off-premises trips through " 'B-City' passes" shows only  that the
Hospital did not think to notify the court and the United  States
Attorney, pursuant to section 301(e), of impending releases.  I find
it telling in any event that the Hospital made no attempt to  defend
its longstanding practice or to protect its interests in any  way in
this appeal until we sua sponte requested it to submit an  amicus
curiae brief. See United States v. Hinckley, No. 97-3183  (filed Oct.
27, 1998) (ordering "that the District of Columbia, as  operator of
St. Elizabeths Hospital, is directed to file an amicus  curiae brief"
to include "an explanation of the frequency and type of  off-ground
visits that the hospital has been allowing without resort  to the
procedure set forth in s 301"). In fact, it does not appear  that the
Hospital ever expressed any dissatisfaction with, much less  objection
to, the 1987 agreement between Hinckley and the United  States
Attorney requiring notice and court approval of any depar- ture by
Hinckley from the Hospital grounds. If requiring judicial  approval of
attended off-premises patient trips will in fact impose  the
"significant burden" the Hospital predicts, see Amicus Curiae 


Mr. Hinckley will not be a danger to himself or others should  he be
permitted to cross the boundary of St. Elizabeths  Hospital under the
proposal before the Court, even in the  company of Hospital staff."
984 F. Supp. at 37. The court's  finding was not clearly erroneous and
should therefore be  affirmed. See Ecker, 543 F.2d at 188 ("At our
level the  standard of review is well settled: The trial court's
'(f)indings  of fact shall not be set aside unless clearly erroneous.'
")  (quoting Fed. R. Civ. P. 52(a)).


The district court based its finding here on the record that  "was
established in June of 1997," 984 F. Supp. at 37, when  the court had
issued an order and memorandum opinion  denying Hinckley conditional
release for monthly 12-hour  unsupervised visits with his parents.
United States v. Hinck- ley, 967 F. Supp. 557 (D.D.C. 1997) (Hinckley
I). The district  court found in Hinckley I that Hinckley


(1) was then diagnosed with "psychotic disorder not  otherwise
specified, in remission; major depression, in  remission; and,
narcissistic personality disorder," diag- noses on which each side's
experts substantially agreed;


(2) "has a history of deception and a record of screen- ing information
he is otherwise obligated to provide to  treating and examining
clinicians," based both on Hinck- ley's stipulation to having deceived
and manipulated  those treating him from the time of his commitment in
 1982 through the end of the decade7 and on his more 




__________

n Brief at 3, the Hospital would have moved much sooner to protect  its
interests. 7 The court found particularly "disturbing" the following
journal  entry Hinckley made in 1987 when he had already been in
treat- ment at St. Elizabeths for five years and had, as now,
"convinced  his treatment clinicians that he had recovered
sufficiently for condi- tional release": I dare say that not one
psychiatrist who has analyzed me  knows any more about me than the
average person on the  street who has read about me in the newspapers.
Psychiatry  is a guessing game and I do my best to keep the fools
guessing  about me. They will never know the true John Hinckley.  Only
I fully understand myself. 967 F. Supp. at 562 (record citation


recent concealment from them of his stalking of Com- mander Jeanette
Wick, the Hospital's Chief Pharmacist,  and of his plan for a possible
television interview;8


(3) "[a]s recently as March 1995-March 1996" "en- gaged in conduct with
the Chief Pharmacist at the Hospi- tal, Jeanette Wick, that has
disturbing parallels to the  conduct leading up to the shooting of
President Reagan  including the stalking of President Carter and Jodie
 Foster";9


(4) had "made progress," as psychological testing re- sults showed, but
"continues to be 'very defensive and  represses a lot of his
feelings.' "


967 F. Supp. at 561-62 (record citations omitted). Based on  its
factual findings and on the opinion of the government's  expert
witness, Dr. Raymond F. Patterson, the district court  concluded that
Hinckley's history of deception made the  accuracy of favorable
diagnoses suspect and raised the likeli- hood of an unpredictable
"relapse," like the one in the "Wick  Incident," posing a potential
danger during the proposed off- premises visits with his parents. Id.
at 562-63. Accordingly,  the court concluded that Hinckley "failed to
meet his burden  that he will not be a danger to himself or others
should he be  permitted monthly twelve-hour unescorted visits with his




__________

n 8 According to the court Wick testified that sometime in 1995 
Hinckley "asked her advice on whether she thought he should be 
interviewed by Barbara Walters." 967 F. Supp. at 559 (record  citation


9 The court found specifically: These parallels include continued
pursuit of a personal relation- ship with Cmdr. Wick even after it
became clear that she was  not interested, making unannounced visits
to her office when  told not to do so by her, making numerous
telephone calls and,  on some occasions, identifying himself only when
Cmdr. Wick  answered the phone, gathering information about her after-
hours personal schedule, recording love songs for her and using  the
pet name of her daughter in one of the songs, and staring  at her in a
menacing fashion more than eight months after he  was told to avoid
her by Hospital Staff. 967 F. Supp. at 562.


parents off Hospital grounds" and that "[t]he severity of [his] 
criminal conduct, and his conduct at the Hospital since his  admission
in 1982, as well as his current behavior, all militate  against the
conditional release he seeks." Id. at 563. The  evidence the district
court cited not only supported but  compelled its assessment of the
danger Hinckley posed. Any  other conclusion would have invited
reversal for clear error.


Here the district court similarly concluded that the record  as of June
1997, when Hinckley I issued, "showed that John  Hinckley, Jr. is a
dangerous individual with a history of  deception" and that
"Hinckley's criminal conduct and his  conduct at the Hospital since
his admission in 1982 militate  against conditional release." 984 F.
Supp. at 37. Most  significantly, the court noted that "none of the
parties here  dispute that Mr. Hinckley's condition remains unchanged 
since June of 1997" ("[e]xcept for 'mild disappointment' at the  news
that his request for conditional release was denied").  Id. at 37 &
n.3 (emphasis added; record citation omitted).  On appeal from
Hinckley I, in which the appellant did not  challenge the substance of
the court's findings and conclu- sions,10 we found the district
court's review of the record  without fault, see United States v.
Hinckley, 140 F.3d 277  (D.C. Cir. 1998), and I can only conclude,
given Hinckley's  history of deception, intimidation and violence and
the uncer- tainty of his current mental state, that there was no clear
 error in the district court's conclusion here that it could not  make
the necessary "affirmative finding that it is at least  more probable
than not that he will not be violently danger- ous in the future."
Ecker, 543 F.2d at 188. The proposal  here differs from Hinckley I in
only two respects: the off- premises visit is limited to six (rather
than twelve) hours and  Hinckley must be attended by a Hospital staff




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n 10 His failure to challenge the court's determinations in the previ-
ous appeal may preclude his doing so now. See Laffey v. Northwest 
Airlines, Inc., 740 F.2d 1071, 1076 (D.C. Cir. 1984) (refusing to 
revisit issues decided in earlier appeals, "hold[ing] that 'the strong
 policy of repose,' precludes consideration of ... earlier rehearsed 
arguments and more recent afterthoughts") (quoting Laffey v. 
Northwest Airlines, Inc., 642 F.2d 578, 585 (D.C. Cir. 1980)).


en route, by a driver. The district court "considered the  details of
this plan carefully, but c[ould] not agree that even  these safeguards
are enough given the existing record in this  case." 984 F. Supp. at
37. This fact-based conclusion is  supported by the same evidence the
court cited in Hinckley I.


Finally, I point out that even were the majority correct  (which it is
not) in holding that the proposed trip is not a  section 301
"conditional release" requiring judicial approval,  the proper
disposition would be to remand to the district  court for a
determination under the Tribby standard (pro- posed below by Hinckley,
984 F. Supp. at 36) whether the  Hospital, in concluding that Hinckley
can leave the Hospital  grounds without risk to the public, "has made
a permissible  and reasonable decision in view of the relevant
information  and within a broad range of discretion." 379 F.2d at
328.11  Given Hinckley's long, undisputed history of mental illness, 
deception12 and violence, I believe the district court can 
unquestionably conclude that the Hospital has not satisfied  this




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n 11 I remain at a loss to understand how we can leave the public 
safety decision to the Hospital, which the Tribby standard does,  when
the Congress so unequivocally assigned it to the court.


12 If Hinckley could successfully (and significantly) deceive his 
treatment team, as was established in Hinckley I, those individuals' 
formulation of any decision based on Hinckley's behavior or reac-
tions must be viewed with caution.