concurring:
On the most significant issue raised by this' appeal — whether a jury should be instructed as to the consequences of a verdict of not guilty by reason of insanity— the panel is divided three ways. I believe the instruction should always be given unless the defendant prefers its omission. Judge Winter believes the instruction should normally not be given. Judge Lum-bard believes that the decision whether to give the instruction should be left to the discretion of the trial judge. We are in agreement, however, that the omission of the instruction in this case does not require reversal of the conviction. I share that conclusion because I am satisfied that the omission of the requested instruction was harmless error. Though the panel is unanimous in its disposition of this appeal, its division on the issue of giving the requested instruction, if left unresolved, leaves the law of this Circuit unclear.1
A court has a paramount obligation to make clear rulings on matters within its jurisdiction. That obligation should weigh especially heavily upon an appellate court whose rulings trial courts are obliged to follow. Much as I would like my view of the law on the giving of the requested instruction to prevail, I feel more strongly that our duty as judges of an appellate court requires us to adjust our differences and formulate a clear rule of law for the guidance of trial courts, if that can fairly be done without violating our oath or our conscience. In this Court, that duty has been recognized on other occasions. See United States v. O’Grady, 742 F.2d 682, 694 (2d Cir.1984) (in banc) (Newman, J., with whom Winter and Pratt, JJ., join, concurring) (altering position on “pattern-of-receipt” instruction in Hobbs Act prosecution to avoid even division of in banc court).
I therefore join Judge Lumbard’s ruling that leaves the giving of the requested instruction to the discretion of the trial judge, thereby forming a majority position in favor of that approach. Since I am in agreement with Judge Lumbard’s disposition of the other issues in this appeal, I concur in the judgment. Nevertheless, I write separately to illuminate the issue for whatever benefit these views might provide both to district judges considering how to exercise their discretion on this matter and to other courts considering the issue in the future.
Whatever the law might have been in an earlier day, it is the sounder course to inform a jury of the consequences of a verdict of not guilty by reason of insanity, now that Congress has provided for mandatory commitment of such defendants. It is also the course endorsed by the Senate Committee on the Judiciary when the Committee reported the bill that established the commitment procedure applicable to such defendants.
Normally, a defendant’s disposition after the return of a jury verdict is not a concern of the jury, see Rogers v. United States, 422 U.S. 35, 40, 95 S.Ct. 2091, 2095, 45 L.Ed.2d 1 (1975) (sentencing). It has long been recognized, however, that this usually salutary principle should not apply to a *51defendant whose acquittal by reason of insanity will result in his commitment. That exception to the usual practice was recognized in England nearly two hundred years ago, see Hadfield’s Case, 27 How.St. Tr. 1282, 1355 (1800), and adopted by the District of Columbia Circuit when that Circuit was the only federal jurisdiction in which commitment was an automatic consequence of a verdict of not guilty by reason of insanity (“NGI verdict”), see Lyles v. United States, 254 F.2d 725, 728-29 (D.C.Cir.1957) (in banc), cert, denied, 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067 (1958). The view that a jury should be informed of the consequences of an NGI verdict, at least where commitment of the defendant is mandatory, has been endorsed not only by the D.C. Circuit, but also by a panel of the Eighth Circuit,2 most state courts that have considered the question,3 and the Criminal Justice Mental Health Standards of the American Bar Association.4
Prior to 1984, federal law did not recognize an NGI verdict, and the disposition of those defendants found not guilty after the successful presentation of an insanity defense depended on the vagaries of state civil commitment procedures. See United States v. Neavill, 868 F.2d 1000, 1002 (8th Cir.), vacated upon grant of rehearing in banc, 877 F.2d 1394 (8th Cir.), appeal dismissed at defendant’s request, 886 F.2d 220 (8th Cir.1989) (in banc). Upon that state of the law, federal courts outside the District of Columbia followed the traditional practice of disapproving instructions to the jury concerning the disposition of a defendant found not guilty after a successful insanity defense. See, e.g., United States v. Alvarez, 519 F.2d 1036, 1048 (3d Cir.1975); Pope v. United States, 372 F.2d 710, 731 (8th Cir.1967), vacated on other grounds, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968); Pope v. United States, 298 F.2d 507, 508-10 (5th Cir.1962). That approach recognized the diversion of the jurors’ attention that might occur if they were instructed concerning the complexities and uncertain consequences of state civil commitment law. It also benefited the defendant by insulating the jurors from the knowledge that a not guilty verdict after a successful insanity defense might well result in a defendant’s being turned loose, see United States v. McCracken, 488 F.2d 406, 421-25 (5th Cir.1974), a consequence that would risk inclining the jury to convict even though entertaining a reasonable doubt about the defendant’s sanity.
Federal law concerning the insanity defense was significantly changed in 1984, however, requiring fresh consideration of the appropriateness of informing the jury concerning the consequences of a successful insanity defense. The Insanity Defense Reform Act of 1984, Pub.L.No. 98-473, tit. II, ch. IV, 98 Stat. 2057 (1984), codified at 18 U.S.C. §§ 4241-4247 (1988), made several critical changes. In the first place, a verdict of not guilty only by reason of insanity was authorized. 18 U.S.C. § 4242(b)(3). Second, the insanity defense was narrowed in scope and established as an affirmative defense that the defendant must establish by clear and convincing evidence. Id. § 4243(d). Third, and especially pertinent to the issue on this appeal, a mandatory civil commitment procedure was established for every defendant found not guilty by reason of insanity. Id. § 4243.
*52Since these fundamental changes in the federal insanity defense, two circuits have reconsidered the pre-1984 practice concerning informing the jury of the consequences of an NGI verdict, and they have reached opposite conclusions. In United States v. Neavill, supra, a panel of the Eighth Circuit concluded that the jury should be informed. Though Judge Arnold’s opinion was vacated “by operation of law,” 886 F.2d at 220, when the Eighth Circuit ordered a rehearing in banc, 877 F.2d at 1394, and Neavill’s appeal was ultimately dismissed at his request, 886 F.2d at 220, that opinion remains a persuasive exposition of the arguments for following the practice of the D.C. Circuit. In United States v. Frank, 933 F.2d 1491 (9th Cir.1991), the Ninth Circuit chose to adhere to the pre-1984 practice.
Now that Congress has mandated civil commitment for defendants who successfully establish an insanity defense, the jury should be made aware of this important and relevant requirement of federal law. Jurors need not be instructed concerning the consequences of verdicts of guilty or not guilty because they can reasonably be assumed to have a general awareness that a finding of guilty exposes the defendant to the risk of some punishment and a finding of not guilty results in the defendant’s freedom. But jurors cannot be expected to know that since 1984 federal law provides automatic civil commitment for those found not guilty by reason of insanity. “[T]he jury has a right to know the meaning of [an NGI verdict] as accurately as it knows by common knowledge the meaning of the other two possible verdicts.” Lyles v. United States, 254 F.2d at 728.
There is no reason to keep this information from the jurors and every reason to make them aware of it. There is no risk of distracting the jurors from the issues they must decide. The information can be communicated quickly and clearly in a brief sentence, without burdening the jurors with the details of the commitment procedure. The jury can simply be informed that if the defendant is found not guilty by reason of insanity, he will be committed to a suitable facility and not released unless he proves to the court that his release would not create a substantial risk of injury to another person or damage to property due to a present mental disease or defect. See 18 U.S.C. § 4243. It might suffice to say only that he will be committed with ultimate release to be determined by the court.
Moreover, on the positive side, communicating the consequence of an NGI verdict guards against the risk that jurors, persuaded that a defendant has established an insanity defense, might nonetheless return a guilty verdict because they do not want the defendant to remain at large in the community. It may well have made sense before 1984 to protect the defendant from the risk of an undeserved guilty verdict by keeping the jurors ignorant of the fact that a successful insanity defense would result in the defendant’s release from federal custody, see United States v. McCracken, supra. It makes no sense now to expose the defendant to the risk of an undeserved guilty verdict by keeping the jurors ignorant of the fact that a successful insanity defense would result in his confinement.
The Senate Committee on the Judiciary, in its report accompanying the Insanity Defense Reform Act of 1984, explicitly endorsed the D.C. Circuit’s practice of informing the jury that an NGI verdict would result in confinement:
The Committee endorses the procedure used in the District of Columbia whereby the jury, in a case in which the insanity defense has been raised, may be instructed on the effect of a verdict of not guilty by reason of insanity. If the defendant requests that the instruction not be given, it is within the discretion of the court whether to give it or not.
S.Rep. No. 98-225, 98th Cong., 1st Sess. 240 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3422 (footnotes omitted). Judge Lumbard’s opinion “read[s] this language to leave the instructional decision to the discretion of the district court.” See page 49. I disagree. The Committee’s report emphasizes that the district court has discretion whether to give the instruction “[i]f the defendant requests that the instruction not be given.” But by “endors[ing]” the “District of Columbia procedure,” the Com*53mittee’s report makes clear that, unless the defendant objects, the jury must be informed of the consequences of an NGI verdict. The District of Columbia procedure is not discretionary:
Sometimes a defendant may not want such an instruction given. If that appears affirmatively on the record we would not regard failure to give it as grounds for reversal. Otherwise, whenever hereafter the defense of insanity is fairly raised, the trial judge shall instruct the jury as to the legal meaning of a verdict of not guilty by reason of insanity....
Lyles v. United States, 254 F.2d at 728-29 (emphasis added) (footnote omitted) (opinion of Prettyman and Burger, JJ.); id. at 734 (Bazelon, J., with whom Edgerton and Washington, JJ., join, concurring in part and dissenting in part); see United States v. Brawner, 471 F.2d 969, 996-98 (D.C.Cir.1972) (in banc).5
Indeed, it is difficult to understand why one would wish to leave to the trial judge’s discretion the decision whether to instruct as to the consequences of an NGI verdict, much less what factors the trial judge is supposed to consider in exercising such discretion. Unless the defendant has objected to the instruction, there is every reason to give it and none to withhold it. Perhaps trial judges in this Circuit, exercising the discretion that the panel majority entrusts to them on this matter, will come to realize that a sound use of that discretion will normally result in giving the instruction.
In this case, I concur in affirming the conviction because the error in not giving the instruction in this case was harmless. That is so because the insanity defense, based on a claim that the defendant suffered from post traumatic stress disorder resulting from combat experience, was insubstantial and the District Judge’s instruction contained an oblique reference to what might have been understood to be further proceedings in the event of an NGI verdict. In combination, these factors persuade me that there was no substantial risk that this jury withheld an NGI verdict they might otherwise have rendered for lack of information as to the mandatory commitment that would have followed such a verdict.
Because the omission of the commitment instruction was harmless error, and because I agree with Judge Lumbard’s opinion concerning the other issues in the appeal, I concur in the judgment to affirm.
. Leaving the three-way division unresolved would not be as intolerable as in circumstances where no majority position for any proposition can be divined. If the division were not resolved, a trial judge, inclined to give the requested instruction, could do so knowing that Judge Lumbard believes he has discretion to do so and J believe he should do so; a trial judge, inclined not to give the requested instruction, could do so knowing that Judge Lumbard believes his discretion includes that course as well and that Judge Winter prefers that course. In my view, that sort of "nose-count jurisprudence,” see In re The Herald Co., 734 F.2d 93, 98, n. 3 (2d Cir.1984), should be avoided.
. United States v. Neavill, 868 F.2d 1000, 1002 (8th Cir.), vacated upon grant of rehearing in banc, 877 F.2d 1394 (8th Cir.), appeal dismissed at defendant’s request, 886 F.2d 220 (8th Cir.1989) (in banc).
. Erdman v. State, 315 Md. 46, 553 A.2d 244 (1989) (instruction should be given whenever requested by defendant); People v. Young, 189 Cal.App.3d 891, 234 Cal.Rptr. 819 (1987) (same); People v. Thomson, 197 Colo. 232, 591 P.2d 1031 (1979) (same); Commonwealth v. Mutina, 366 Mass. 810, 323 N.E.2d 294 (1975) (same); Roberts v. State, 335 So.2d 285 (Fla.1976) (instruction must be given unless defendant prefers its omission). See Thomas M. Fleming, Annotation, Instructions in State Criminal Case in which Defendant Pleads Insanity as to Hospital Confinement in Event of Acquittal, 81 A.L.R. 4th 659, 667 (trend in state courts favors requiring or authorizing instruction on consequences of NGI verdict).
.ABA Standards Relating to Criminal Justice Mental Health § 7-6.8 (1984).
. Because of the Committee’s explicit endorsement of the D.C. Circuit’s mandatory instructional rule, I agree with Judge Arnold that the use of the word "may" in the passage quoted from the Committee's report must be understood to contemplate the exercise of discretion only when the defendant objects to an instruction, as the report’s very next sentence makes clear. See United States v. Neavill, 868 F.2d at 1004 n. 3.