(concurring).
I concur in affirmance of the order of the District Court in discharging the writ of habeas corpus. Section 24-301, properly construed in the body of law of which it is a part, I think is constitutional, and appellant failed to make a factual showing which entitled him to release. But the opinion of the court goes further than I think is necessary, and I do not entirely agree with it.
I had not considered Douglas v. United States, 99 U.S.App.D.C. 232, 239 F.2d 52, to lay down a rule of relative weight of expert and non-expert evidence on the issue of sanity, unless in a very indirect way by reaching a conclusion that the evidence so overwhelmingly pointed to insanity in the particular case as to leave no room for a finding of sanity beyond a reasonable doubt.
*950The present opinion refers to Over-holser v. Leach, 103 U.S.App.D.C. 289, 291, 257 F.2d 667, 669, certiorari denied 359 U.S. 1013, 79 S.Ct. 1152, 3 L.Ed.2d 1038, as holding that the person seeking release has the “burden of showing that the refusal of the superintendent to issue the statutory certificate was arbitrary or capricious.” I agree with Leach that the burden is on the person seeking release; but I draw back from holding that the proof must reach the degree of certitude thus attributed to Leach, or required to convict of crime, that is, proof beyond a reasonable doubt, as the present opinion seems also to hold. Since no statute establishes the degree of proof in a case such as this the courts must fashion the rule. I would not transplant into this field a fixed rule which has grown up elsewhere, expressed in terms of “arbitrariness,” “caprieiousness,” or “beyond a reasonable doubt.” For the time being, and until the courts have gained greater experience with problems growing out of section 24-301, I would go no further than to say that on the evidence and in the circumstances as a whole the District Court should be able to reach a sound judgment one way or the other on the question of release.
The position of the majority that one committed on a charge calling for a maximum sentence of 18 months may be confined in St. Elizabeths under section 24-301 for perhaps ten years or more, I think needs qualification in aid of the constitutionality of this mandatory commitment section. I agree that there is a rational relationship between mandatory commitment under section 24-301 and an acquittal by reason of insanity. I think it is not undue process of law for society, in seeking a solution of the problem with which the legislation copes, to use such a provision as section 24-301, notwithstanding there is no finding of insanity, but only a doubt with respect to sanity, when section 24h301 comes into operation. See Greenwood v. United States, 350 U.S. 366, 76 S.Ct. 410, 100 L.Ed. 412. But this mandatory commitment provision rests upon a supposition, namely, the necessity for treatment of the mental condition which led to the acquittal by reason of insanity. And this necessity for treatment presupposes in turn that treatment will be accorded.
Since an accused is entitled to be acquitted on the ground of insanity although the evidence may merely have led the jury to entertain a reasonable doubt as to his sanity when the offense occurred, the validity of continued confinement under the mandatory commitment provisions of section 24-301 may require that, unless within a reasonable time he progresses toward becoming not dangerous to self or community, the person committed can be held only by a separate civil adjudication of unsoundness of mind, and not solely by reason of section 24-301. It is by no means clear that society can continue to deprive a person of liberty by attributing to a jury’s doubt about his mental condition, which led to his acquittal and mandatory commitment, any and all evil or criminal propensities he may be thought to have, and to keep him in confinement because of them. This would transform the hospital into a penitentiary where one could be held indefinitely for no convicted offense, and this even though the offense of which he was previously acquitted because of doubt as to his sanity might not have been one of the more serious felonies.
The availability of habeas corpus in the abstract does not save the statute, especially when it is remembered that in a habeas corpus proceeding the burden of proof necessary to obtain release rests upon the petitioner, whereas it rests upon the committing authorities in civil commitment proceedings. The statute is saved by construing the conditions governing continued confinement consistently with due process. To do this the continued danger to society which warrants continued deprivation of liberty under section 24-301 alone must be, at least, a danger comparable to the seriousness of the offense of which the committed person was acquitted. And if that offense is of a non-violent character a more *951lenient approach to the question of danger is in order, particularly in connection with conditional release, as to which see Hough v. United States, 106 U.S.App.D.C. 192, 271 F.2d 458. Moreover, if improvement by treatment does not forecast ability to adjust reasonably well to life in the community, due process may well require, as above indicated, that within a reasonable time, which will vary from case to ease, continued confinement be made dependent upon civil commitment proceedings, with their greater procedural safeguards, and not left indefinitely to rest alone upon commitment under section 24-801, which is more summary in nature and therefore does not afford those safeguards.