I concur in the result and in so much of the opinion as explains why the hospital authorities, including appellee superintendent, could not validly claim in the District Court that appellant’s petition for habeas corpus must be dismissed for failure to exhaust administrative remedies.
As to the rest of the opinion, I feel obliged to say that passages I believe to be dicta set forth views as to which I have grave reservations.
The paramount factor bearing on decision is not the interest of the patient, but rather the interest of society, which includes of course, as a key element, the interest of the patient in not being subject to confinement that is unreasonable or without foundation.
I concur in requiring some continuing review, by hospital authorities and courts, of the possibility that a criminal defendant no longer represents a danger to society.
What I find doubtful is the view of the majority opinion that because Congress has provided that a civilly committed person cannot be kept in confinement if he is not “likely to injure himself or other persons,” 1 the same standard governs a man who has killed another, and is relieved of a conviction for that homicide only because of a doubt that this may have been the product of a mental disease.
Plainly the acquittal by reason of insanity reflects a jury determination, beyond a reasonable doubt, that except for the defense of insanity, defendant did do the act, e. g. kill the deceased, and have the intent, that constitutes the substantive crime without any exculpation or mitigation in non-insanity defenses (e. g. self-defense). Lynch v. Overholser, 369 U.S. 705, 714, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962). If a jury is not ready to make that determination it must acquit completely, without going on to consider the insanity defense.
Congress has provided in 24 D.C.Code § 301(d) that a person acquitted of a crime by reason of insanity shall be immediately hospitalized even though there is no finding by anyone, and no testimony by anyone, that he is “likely” to commit another dangerous act. The majority apparently accepts the validity of that initial difference in procedure from *602the provisions in Title 21 of the D.C.Code pertaining to those who are civilly committed. Why is it reasonable for Congress to provide for immediate confinement of the criminal defendant based upon the possibility (reasonable doubt), not probability, that the unfortunate action was the product of mental illness, even though there is no finding that this or any other dangerous act is likely to recur? The question is not an easy one to answer, but I think part of the answer reflects a reasonable difference in standards that makes it permissible, even without a finding that danger is “likely” to erupt in the future, to detain someone who has committed an act that is criminal save for the doubt as to mental responsibility.
The Code provides that the court shall release a person acquitted by reason of insanity “if the court finds that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or others.” 24 D.C.Code § 301(e). It may well be that in the case of a defendant who presents a substantial problem of danger in the reasonable future, by virtue of his mental condition, the finding in 301(e) cannot be made even though it cannot be said that this danger is “likely.” I am not ready to say that this difference from the standard provided for those merely civilly committed (see note 1) is repugnant to fairness or the Constitution.
This difference goes beyond the obvious point that the action that resulted in the trial will at a minimum be “strong evidence” that he may in the future be a danger to peace. Lynch v. Overholser, supra, 369 U.S. at 714, 82 S.Ct. 1063. It goes to the question of what society may reasonably provide when the evidence, though strong, establishes only that a substantial problem exists and does not show a likelihood that danger will recur. I think the existence of a substantial problem is not an adequate basis to confine or detain a man who has never harmed his fellow man, never committed the physical elements of a crime. But I would like at least to reserve the question whether the existence of a substantial problem may be enough basis to detain and confine someone who (except for the doubt as to mental responsibility) has committed a criminal act, at least if an act of violence was involved — unless the court is prepared to make some affirmative finding that it is at least more probable than not that he will not be violently dangerous in the future.2
I realize that I am now expressing a reservation on a point that was discussed in Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642 (1968). I fully agree with Bolton insofar as it concludes that subsection (d) may fairly be read— and in view of constitutional principles should properly be read — so that persons who invoke the insanity defense are not denied a judicial hearing and “procedures substantially similar to those in civil commitment proceedings.” 3 What troubles me is that passage of Bolton which states that equal protection requirements dictate that the burden of proof in establishing eligibility for release for subsection (d) patients “must be the same as that for civilly committed patients.” 4 Insofar as Bolton went beyond the procedural aspects of subsection (d) redeterminations and procedures for release, and discussed the standards governing judicial decisions on such applications, its expressions seem to me to be dicta, and as it happens dicta as to which I have grave reservations.
*603In exploring whether there may be significant grounds for some difference in burden of proof or persuasion I revert to Lynch v. Overholser, supra, where the Court, in holding that the provisions of § 24-301 (d) were not applicable to those who did not claim they were mentally irresponsible, said (369 U.S. at 715, 82 S.Ct. at 1069):
Congress might have thought, however, that having successfully claimed insanity to avoid punishment, the accused should then bear the burden of proving that he is no longer subject to the same mental abnormality which produced his criminal acts. Alternatively, Congress might have considered it appropriate to provide compulsory commitment for those who successfully invoke an insanity defense in order to discourage false pleas of insanity. We need go no further here than to say that such differentiating considerations are pertinent to ascertaining the intended reach of this statutory provision.
I see no reason to conclude that these words penned by Justice Harlan in 1963 were scrapped in 1966 by Baxstrom v. Herold 5 in which he joined. What Baxstrom focused on were (a) procedures for civil commitment (need for jury determination) which were (b) extended on equal protection grounds to one whose prison term was about to expire (in fact did expire prior to the habeas proceeding), and who would thereafter be held on a new commitment. The applicable standard extended by the Court permitted release only if the person showed that he was sane.6
It seems to me likely that an important aspect of the 301(d) cases is that they are a class of cases in which the issue of mental irresponsibility is more doubtful. When the lack of mental responsibility is more clear the prosecutor himself is likely to invoke civil commitment rather than criminal proceedings. And if he does bring criminal proceedings the court may invoke insanity procedures without regard to or awaiting the motion of the defendant.
But if there is a greater doubt as to mental irresponsibility at the time of offense there may well be greater danger of calculated abuse of the defense. There is also a possibility — I am not well enough informed to say whether it is a probability — that the condition involved may be one which is less clearly defined and understood by the medical profession, that there is more doubt as to the existence of an illness, its connection with a past offense, and any future prognosis and forecast of danger.
There is an anomaly of sorts, but I think it may well be more surface than profound, in my willingness to consider further whether the class of persons more clearly ascertained as having serious mental problems (the civilly committed) may properly have a lighter burden for release. This could make very good sense if it turned out that in general that class is one as to which future predictions could be made with greater reliability and authority. The considerations suggesting reasonableness of a difference in standards are enlarged when we turn from purely medical considerations to others that are also involved, including the possibility that some part (unaseertainable in extent) of the class of 301(d) patients may have meaningful elements of responsibility *604for the offense, even though there is enough doubt to obviate a verdict of guilty.
This is not to suggest that there may be an indefinite hospital confinement based on doubt. There is an equal protection issue when a prisoner has served his prison sentence, and he may not thereafter be hospitalized on a different standard from that applicable to other citizens. Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966). The same considerations are, I think, fully applicable to one who has been confined in a mental hospital for a period equal to the maximum term permitted by law for the offense he committed (less mandatory release time provided by statute for those on good behavior during confinement). In that event the government cannot invoke a lesser standard to justify further confinement than that which it must meet for those never charged with crime.7
It may well be that there is another cut-off point in time of commitment— say the 5-year period presented by the Report of the A.B.A. Committee on Sentencing8 — -which results in such a coincidence of both dilution of danger of abuse from those invoking the insanity defense and heightened reliability of prognosis, as to warrant condemnation of any further use of a different standard in 301(d) as arbitrary, an unreasonable perpetuation of commitment on the basis of substantial problems rather than likelihood of danger.
I do not believe or suggest, and do not ■ consider that my reservation as to the majority opinion implies, that an individual is in any way to be “punished” because he was acquitted by reason of insanity. There is homely truth in the proposition that re-structuring of a person convicted of crime must begin with the determination, on his plea or on a verdict, that he was guilty of an antisocial act and bears responsibility for the commission of that act. I am also prepared to accept, at least as a working hypothesis, that the re-structuring of a person with mental illness, to the extent that such re-structuring may be possible, should begin with the explicit assumption that although he has engaged in conduct that is harmful to society he need not be trammeled by a sense of guilt in his effort to cope with the difficult task of changing his condition with treatment. But there is room for confinement without punishment because of danger, as is true not only of the mentally ill, but also of those who will infect others with disease (sometimes, as in the case of Typhoid Marys, though they are not themselves disabled by the disease). And in the case of confinement without punishment, I think there may be room for a difference in the standard that governs the issue of detention or release for the person who has already unhappily manifested the reality of anti-social conduct, perhaps even shifting to him the burden of proof that decides the doubtful case where we cannot have confidence in our predictions. In the last analysis the issue is one that inextricably intertwines public morality and public need.
These are large issues, and it may well be that the possibility of a difference in standards is more likely to provoke controversy in the abstract than e'ver will arise in disposition of particular cases. Perhaps the definition of the standard would be better developed in the light of particular cases, involving particular individuals and their prognoses, dangers, and histories (including the acts giving rise to the criminal charge or charges). It is certainly true that conclusions as to what should be done in particular cases will be most *605aided if the facts are clearly presented so far as they are known or knowable.
The hospital’s examination when made must be meaningful, and the conclusions subject to meaningful review. The exhaustion doctrine, established to ensure the essence of meaningful review, may not soundly be used to avoid such review, or to exhaust the patient rather than his remedies. On these matters I concur unreservedly in the opinion of the majority.
. 21 D.C.Code §, 546.
. While there is a problem in terms of its literal wording, the intent of § 301 (d) does not seem to me to require detention of someone affirmatively determined as unlikely to be dangerous merely because he has a mental disease or defect that could come within the definition of insanity.
. 130 U.S.App.D.C. at 10, 395 F.2d at 651, 653.
. 130 U.S.App.D.C. at 12, 395 F.2d at 653.
. 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966).
. Tlie New York court’s extension of this provision to persons acquitted of crime by reason of insanity must be read in-light of the provision, New York Mental Hygiene Law, McKinney’s Consol.Laws, c. 27, § 74, that civilly committed persons could obtain release by jury trial only if the jury affirmatively found the defendant “to be sane” (see 383 U.S. at 111, 86 S.Ct. 760).
In People v. Lally, 19 N.Y.2d 27, 277 N.Y.S.2d 654, 244 N.E.2d 87, 91 (1966) defendant challenged the validity of confinement “by alleging and showing that he is not in fact insane.” There was no provision for release because of the existence of doubt — or the failure to find a likelihood of danger.
. As a realistic matter the standard should be the same when the person has been confined (in the hospital) for a period equal to the sentence generally meted for such offenses, even though less than the maximum.
. ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Sentencing, Alternatives and Procedures 48 (1968).