Standards for Conditional Discharge Revocation

Facts of the Case

In July 2007, Mr. Perkins threatened a United States Congressman. During the proceedings, Mr. Perkins was deemed incompetent to stand trial and unlikely to be restored in the foreseeable future. In accordance with 18 U.S.C. § 4246, the district court civilly committed Mr. Perkins after a finding of mental disease or defect and dangerousness.

With treatment, Mr. Perkins’ mental condition improved. He returned home under conditional discharge, violated the terms of the discharge, and was recommitted by the district court. He again improved with treatment and was conditionally released with 19 conditions imposed for his release. Mr. Perkins subsequently violated five of those terms, including residing at and abiding by the rules of a residential care facility, participating in GPS monitoring, actively participating in mental health care, taking all prescribed medication, and not traveling beyond the court’s jurisdiction without permission. Subsequently, his conditional release was revoked.

Mr. Perkins appealed on the grounds that the district court did not meet the requirements of 18 U.S.C. § 4246 and failed to find that he “posed a substantial risk of bodily injury to another person or serious damage to the property of another” (Perkins, p 588). The Fourth Circuit Court of Appeals remanded for a rehearing that commented on this risk. On remand, the district court found that Mr. Perkins’ violations of the terms of his conditional release indicated a substantial risk and recommitted him. The trial judge reasoned that violation of the order of conditional release was in itself a reason for the revocation of conditional release. Mr. Perkins appealed again to the Fourth Circuit.

Ruling and Reasoning

A panel of three judges for the Fourth Circuit Court of Appeals vacated and remanded the case, ruling that the district court had not met the irreducible minimum standard of recording a “thorough and well-supported explanation” demonstrating a “reasoned and logical linkage” between Mr. Perkins’ violations to the creation of “substantial risk of bodily injury to another person or serious damage to property of another” (Perkins, p 634). As a matter of first impression, the court also found that the preponderance of evidence standard applies to revocation of conditional release.

In considering the dangerousness inquiry, the Fourth Circuit acknowledged that there has been significant progress in determining the factors worthy of consideration that contribute to risk assessment but also that these long lists are impracticable. To emphasize the difficulty of violence risk analysis, the Fourth Circuit created a list of 38 factors linked to increased future violence risk. The court indicated that an assessment of all risk factors is overly rigid for the district court. Instead, the Fourth Circuit articulated that the district court should be allowed some flexibility but also at minimum be required to record a thorough and well-supported explanation of how violation of the terms of conditional discharge is linked to substantial risk of bodily injury to another person or serious damage to property of another. The Fourth Circuit went on to discuss that in certain cases, the district court may order psychiatric examinations, expert risk assessments, or further reports to help construct this explanation.

In holding that the standard for revoking conditional discharge should be a preponderance of the evidence, the court acknowledged that there has been an inconsistent standard of evidence for 18 U.S.C. § 4246(f). The court noted that Congress was seemingly satisfied with judicial review establishing the proof standard, that previous Judicial Conference reports indicated similarities between probation and conditional discharge, that its own prior holding equated supervised release and probation, and that Congress required the preponderance standard in 1986 via 18 U.S.C. § 3283(e)(3) (2009). Thus, the court was satisfied with the preponderance of the evidence standard.

In line with these rulings, the Fourth Circuit found that the district court had not provided sufficient details to satisfy the standard of a preponderance of the evidence, nor did it provide a reasoned explanation for the dangerous inquiry.

Discussion

This case opinion provides an in-depth review of 50 years of treatment for persons with mental illness, the ebb and flow of institutionalization, and the evolution of the federal civil commitment process for the purpose of clarifying standards left vacant by legislation. The case illustrates how judicial decisions take into account congressional intent, practicality, individual liberty and the interests of the public, as well as the evolution of the science of mental health and expert testimony.

More importantly, under Perkins, a finding that someone is dangerous based solely on a violation of the terms of a conditional discharge is insufficient for revocation of the discharge and recommitment. Rather, there must actually be a link between any violation and a substantial risk of violence. The court provides an example of how it views the changes in risk assessment and acknowledges that, despite the developing knowledge of a multitude of risk factors, it is insufficient and impractical to simply apply a list of all known risk factors. The Fourth Circuit clarified that risk assessment still requires context, judicial discretion, and analysis. The Fourth Circuit specifically stated it is not the role of the court to determine these factors. Rather, counsel and facility professionals should be prepared to address these matters in hearings for the court to decide.

This case is important for forensic psychiatrists because treating psychiatrists involved in these settings and psychiatric expert witnesses may play a large role in contextualizing violence risk factors for the courts. Experts would benefit from awareness of the myriad of factors the court considers relevant to violence risk assessment. Finally, given this role for psychiatric expert testimony in more complicated revocation of conditional discharge hearings, it behooves experts to know the legal standard of proof in their jurisdiction, which the Fourth Circuit defined as preponderance of the evidence.