United States v. Weston, Russell E.

RANDOLPH, Circuit Judge,

with whom Circuit Judge SENTELLE joins, concurring:

I write separately because I believe United States v. Weston, 206 F.3d 9 (D.C.Cir.2000), our first decision in this case, may have embodied a serious error.

Concluding that Weston was not sufficiently dangerous to warrant forcibly medicating him, the panel wrote that “in his current circumstances Weston poses no significant danger to himself or to others.” Weston, 206 F.3d at 13. This was so because Weston was confined to a room, under constant observation and had no access to anything he could use to harm himself or others. See id. The upshot, the panel concluded, was that “[i]f the government advances the medical/safety justification on remand, it will need to present additional evidence showing that either Weston’s condition or his confinement situation has changed since the hearing so as to render him dangerous.” Id.

This standard puts the government in an unnecessary quandary. If Weston were no longer confined to a room and under constant surveillance, he would be dangerous and, presumably, could be medicated. However, because the government cannot medicate him while he is carefully confined — and therefore, not dangerous — it cannot release him into the general pretrial detention population without incurring substantial risks. The result: the *888government is all but forced to keep Weston in isolation, a condition almost everyone agrees is detrimental to Weston’s long-term mental health.

The statutes — 18 U.S.C. §§ 4241^247— provide a far different standard for dangerousness than the prior panel’s decision, and represent not only the good judgment of Congress and the President, but also the Judicial Conference of the United States which “after long study by a conspicuously able committee, followed by consultation with federal district and circuit judges,” proposed the legislation. Greenwood v. United States, 350 U.S. 366, 373, 76 S.Ct. 410, 100 L.Ed. 412 (1956). Under § 4246, a person is to be held and treated if “his release would cause a substantial risk of bodily injury to another person or serious damage to property of another.” 18 U.S.C. § 4246(d) (italics added). Thus, the question on Weston’s first appeal should not have been whether he was dangerous given the manner in which he was confined, but whether he was dangerous as a general matter, that is, if he were released from strict confinement and observation.

Our concurring colleague proposes a different reading of the prior panel’s decision. Because of the problems just discussed, I hope her view eventually prevails even though the language of that opinion, quoted above, does not seem to support her.