United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed April 27, 1999
No. 97-3183
United States of America,
Appellee
v.
John W. Hinckley, Jr.,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 81cr00306-01)
On Appellee's Suggestion for Rehearing En Banc
BEFORE: Edwards, Chief Judge; Wald, Silberman,
Williams, Ginsburg, Sentelle, Henderson, Randolph, Rogers,
Tatel and Garland, Circuit Judges.
O R D E R
Appellee's petition for rehearing en banc and the response
thereto have been circulated to the full court. The taking of
a vote was requested. Thereafter, a majority of the judges of
the court in regular, active service did not vote in favor of the
petition. Upon consideration of the foregoing, it is
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
Circuit Judges Ginsburg, Sentelle, Henderson and
Randolph would grant the petition for rehearing en banc.
A statement of Circuit Judge Henderson dissenting from
the denial of rehearing en banc, joined by Circuit Judges
Ginsburg and Sentelle, is attached.
Karen LeCraft Henderson, Circuit Judge, with whom
Ginsburg and Sentelle, Circuit Judges, join, dissenting from
the denial of rehearing en banc:
The panel decision in this case sets a wrong and a danger-
ous precedent. The decision is wrong for the reason I
addressed at length in my panel dissent, Hinckley v. United
States, 163 F.3d 647, 656-61 (D.C. Cir. 1999): Section 24-301
of the District of Columbia Code, as previously construed by
this court, permits an inmate acquitted by reason of insanity
to be "conditionally released under supervision" from hospital
grounds only "if, after a hearing and weighing the evidence,
the [district] court shall find that the condition of such person
warrants his conditional release." D.C. Code section
24-301(e); see United States v. Ecker, 543 F.2d 178, 183 (D.C.
Cir. 1976) (statutory procedure applies "when, and if, the
patient is to cross the hospital boundary"). It is dangerous
because it leaves to hospital administrators, rather than to
judges as the Congress intended, final say in whether to
release among the public members of what this court has
justifiably called an "exceptionally dangerous class." Ecker,
543 F.2d at 186. That the panel's removal of the statutory
check on hospital discretion compromises public safety is well
illustrated in the history of Hinckley's commitment. Twice
before his "conditional release under supervision" was pre-
vented because of facts uncovered only after the hospital
recommended release and the statutory procedure had com-
menced. See United States v. Hinckley, 967 F. Supp. 557,
588 (D.D.C. 1997); United States v. Hinckley, 725 F. Supp.
616 (D.D.C. 1989). And Hinckley is not the only dangerous
person the statutory procedure has kept from public circula-
tion. See, e.g., United States v. Snyder, 529 F.2d 871 (D.C.
Cir. 1976); United States v. Ecker, 479 F.2d 1206 (D.C. Cir.
1973). The full court's decision to leave intact the panel
disposition hamstrings the statutory safeguard against such
menaces.* Accordingly, I dissent from denial of the govern-
ment's petition for rehearing and for rehearing en banc.
* Requiring court approval upon the government's objection to a
proposed attended release will not, as St. Elizabeths predicts,
impose a "significant burden" on the hospital's administration. As
the panel majority acknowledged, the government never objected to
such a release before Hinckley and intended to do so in other cases
only when it "thought court intervention would be necessary, based
on concerns for public safety." 163 F.3d at 656.