BOP Program Statement 5880.28 ch. 2 § 2

This chapter is concerned only with Section 403 of the IDRA,

which replaces old Chapter 313 on Mental Defectives, as it

pertains to the commitment, release, discharge, and record

keeping functions. New Chapter 313 is entitled, Offenders With

Mental Disease or Defect.

P.S. 5880.28

February 21, 1992

Page 2 - 3

a. 4241 Determination of Mental Competency to Stand

Trial. The SPC and narrative for a mental competency examination

under 18 USC § 4241 is:

SPC = 0220 4241 Determination of Mental Competency to

Stand Trial

Under 18 USC § 4241, "At any time after the

commencement of a prosecution for an offense and prior to the

sentencing of the defendant, the defendant or the attorney for

the Government may file a motion for a hearing to determine the

mental competency of the defendant." If the court grants the

motion for the hearing, "the court may order that a psychiatric

or psychological examination of the defendant be conducted and

that a psychiatric or psychological report be filed with the

court. . ." The report must, of course, be filed with the court

prior to the date of the hearing. The time allowed under 18 USC

§ 4247(b) for a mental competency examination under 18 USC §

4241, is 30 days, with a 15 day extension if needed and approved

by the court. The examination period begins on the date that the

mental competency examination is ordered.

The examination time, as well as any other time in

custody prior to the examination, shall be treated as presentence

time credit if the prisoner serves a sentence for the offense

that underlies the examination.

P.S. 5880.28

February 21, 1992

Page 2 - 4

b. 4241 Hospitalization and Treatment. The SPC and

narrative for hospitalization treatment under the provisions of

18 USC § 4241 is:

SPC = 0221 4241 Hospitalization and Treatment

After the hearing mentioned in a. above, if "the

court finds by a preponderance of the evidence that the defendant

is presently suffering from a mental disease or defect rendering

him mentally incompetent to the extent that he is unable to

understand the nature and consequences of the proceedings against

him or to assist properly in his defense, the court shall commit

the defendant to the custody of the Attorney General. The

Attorney General shall hospitalize the defendant for treatment in

a suitable facility--(1) for such a reasonable period of time,

not to exceed four months, as is necessary to determine whether

there is a substantial probability that in the foreseeable future

he will attain the capacity to permit the trial to proceed; and

(2) for an additional reasonable period of time until--(A) his

mental condition is so improved that trial may proceed, if the

court finds that there is a substantial probability that within

such additional period of time he will attain the capacity to

permit the trial to proceed; or (B) the pending charges against

him are disposed of according to law; whichever is earlier."

As noted above, the court may commit a defendant to

the custody of the Attorney General for hospitalization and

treatment for four months and an additional reasonable period may

be granted. This

P.S. 5880.28

February 21, 1992

Page 2 - 5

period of time begins on the date of the court order. Such time,

as well as any other time in custody prior to the

hospitalization, shall be treated as presentence time credit if

the defendant serves a sentence for the offense that underlies

the hospitalization and treatment.

If, at the end of the time period specified for the

hospitalization treatment, the defendant's mental condition has

not so improved as to permit the trial to proceed, staff shall

review the case prior to discharge to determine if an 18 USC §

4246 petition should be filed.

P.S. 5880.28

February 21, 1992

Page 2 - 6

c. 4242 Determination of the Existence of Insanity at

the Time of the Offense. The SPC and narrative for a

determination of the existence of insanity at the time of the

offense under 18 USC § 4242 is:

SPC = 0222 4242 Determination of The Existence of

Insanity At The Time of The Offense

"Upon the filing of a notice, as provided in Rule

12.2 of the Federal Rules of Criminal Procedure, that the

defendant intends to rely on the defense of insanity, the court,

upon motion of the attorney for the Government, shall order that

a psychiatric or psychological examination of the defendant be

conducted, and that a psychiatric or psychological report be

filed with the court, pursuant to the provisions of section

4247(b) and (c)."

The examination time allowed under 18 USC § 4247(b)

is 45 days, with a 30 day extension if needed and approved by the

court. The examination period begins on the date of the order.

Such time, as well as any other time in custody prior to the

commitment, shall be treated as presentence time credit if the

defendant serves a sentence for the offense that underlies the

examination order.

The court may also, at this time, order an

examination under 18 USC § 4241. If this order occurs, the

institution may use the longer time period allowed under 18 USC §

4242 for completion of the combined report.

P.S. 5880.28

February 21, 1992

Page 2 - 7

d. 4243 Determination of Present Mental Condition of

Acquitted Person. The SPC and narrative for an examination of an

acquitted person to determine present mental condition under 18

USC § 4243(b) and (c) is:

SPC = 0223 4243 Determination of Present Mental

Condition of Acquitted Person

Pursuant to 18 USC § 4243(a), "If a person is found

not guilty only by reason of insanity at the time of the offense

charged, he shall be committed to a suitable facility until such

time as he is eligible for release pursuant to subsection (e)."

As a result, under 18 USC § 4243(c), "A hearing shall be

conducted pursuant to the provisions of section 4247(d) and shall

take place not later than forty days following the special

verdict."

The time period for this examination begins on the

date the not guilty only by reason of insanity verdict is

reached. As noted above, the examination time allowed is less

than 40 days since the court is required to conduct a hearing

based on the examination no later than 40 days following the

insanity not guilty verdict. This 40 day time frame conflicts

with the 45 days, and a 30 day extension, authorized by 18 USC §

4247(b). Unless otherwise ordered by the court, the time allowed

by 18 USC § 4247(b) may be utilized.

P.S. 5880.28

February 21, 1992

Page 2 - 8

e. 4243 Hospitalization and Treatment. The SPC and

narrative for a commitment for hospitalization and treatment

under 18 USC § 4243(a) is:

SPC = 0224 4243 Hospitalization and Treatment

If the court commits a person to the custody of the Attorney

General after a verdict of not guilty by reason of insanity and

after a hearing under 18 USC § 4243(c), "fails to find by the

standard specified in subsection (d) of this section that the

person's release would not create a substantial risk of bodily

injury to another person or serious damage of property of another

due to a present mental disease or defect, the court shall commit

the person to the custody of the Attorney General. The Attorney

General shall release the person to the appropriate official of

the State in which the person is domiciled or was tried if such

State will assume responsibility for his custody, care, and

treatment. The Attorney General shall make all reasonable

efforts to cause such a State to assume such responsibility. If,

notwithstanding such efforts, neither such State will assume such

responsibility, the Attorney General shall hospitalize the person

for treatment in a suitable facility. . . The Attorney General

shall continue periodically to exert all reasonable efforts to

cause such a State to assume such responsibility for the person's

custody, care, and treatment."

This period of time begins on the date of the court

order and is for an indefinite period of time.

P.S. 5880.28

February 21, 1992

Page 2 - 9

Furloughs for persons committed for an indefinite

period of time under 18 USC § 4243(e) may be granted in

accordance with 18 USC § 4243(h).

P.S. 5880.28

February 21, 1992

Page 2 - 10

f. 4244 Determination of Present Mental Condition of

Convicted Defendant Prior to Sentencing. The SPC and narrative a

mental condition determination under 18 USC § 4244 is:

SPC = 0225 4244 Determination of Present Mental

Condition of Convicted Defendant Prior

to Sentencing

The examination time allowed for a mental condition

determination, after conviction but prior to sentencing, is 30

days, with a 15 day extension if approved by the court. The

examination period begins on the date of the court order. This

examination time, as well as any other time in custody prior to

the examination, shall be treated as presentence time credit if

it qualifies. (See Chapter I, paragraph 2 (c).)

P.S. 5880.28

February 21, 1992

Page 2 - 11

g. 4244 Hospitalization and Treatment. The SPC and

narrative for a hospitalization and treatment commitment under 18

USC § 4244 is:

SPC = 0226 4244 Hospitalization and Treatment

If the court, after a hearing conducted under the provisions

of 18 USC § 4244(c), finds that the defendant is suffering from a

mental disease or defect that requires hospitalization for care

or treatment in the custody of the Attorney General, such

commitment shall be in lieu of a sentence to imprisonment but

shall constitute a provisional sentence to the maximum term

authorized by law for the offense. The provisional sentence

shall be treated the same as a regular sentence of imprisonment,

i.e., the computation shall be the same, and shall begin on the

date the commitment was ordered. Any time spent in custody prior

to the commitment order shall be treated as presentence time

credit if it qualifies.

If the release date for the maximum sentence is reached

before the defendant recovers, an 18 USC § 4246 determination may

be accomplished prior to discharge. If the defendant recovers to

such an extent that treatment is no longer necessary, the court

should immediately be notified so that it proceed to final

sentencing and may modify the provisional sentence.

P.S. 5880.28

February 21, 1992

Page 2 - 12

h. 4245 Determination of Present Mental Condition of

Imprisoned (Sentenced) Person. The SPC and narrative for a

commitment to determine the present mental condition of a

sentenced person is:

SPC = 0227 4245 Determination of Present Mental

Condition of Imprisoned (Sentenced)

Person

After a person begins serving a sentence and the staff

believes that the person may be suffering from a mental disease

or defect for the treatment of which he is in need of custody for

care or treatment in a suitable facility, and the person objects

to such care or treatment, upon motion of an attorney for the

government, the court may order that a psychiatric or

psychological examination be conducted under the provisions of 18

USC § 4245(b).

The time allowed for an examination under 18 USC § 4245(b)

is 30 days, with a 15 day extension if approved by the court.

The examination period begins on the date of the court order.

Since the person is serving a sentence during the examination,

that period of time will ordinarily not count as presentence time

credit.

P.S. 5880.28

February 21, 1992

Page 2 - 13

i. 4245 Hospitalization and Treatment. The SPC and

narrative for a hospitalization and treatment commitment under 18

USC § 4245 is:

SPC = 0228 4245 Hospitalization and Treatment

Under 18 USC § 4245(d), if the court finds that a person is

presently suffering from a mental disease or defect for the

treatment which the person is in need of custody for care or

treatment in a suitable facility, the court shall commit the

person to the custody of the Attorney General. Commitment under

this section continues until the person is no longer in need of

care or treatment or until expiration of the sentence ( for an

SRA sentence, the release date with any GCT and for an "old law"

sentence, the release date with any statutory and extra good time

or release on parole), whichever occurs earlier. Such a

commitment will change the person's status from one of

imprisonment in a regular facility to "hospitalization and

treatment" in a "suitable facility."

The date that the hospitalization and treatment begins is

the date of the court order. If the person has not recovered by

expiration of sentence (regardless of whether a voluntary or

court ordered commitment), an 18 USC § 4246 determination will be

accomplished prior to discharge. If the person recovers prior to

expiration of sentence, the court will issue an order to that

effect which will essentially return the person to the former

regular sentence status.

P.S. 5880.28

February 21, 1992

Page 2 - 14

j. 4246 Determination of Mental Condition of Person

Due for Release. The SPC and narrative for a commitment for a

mental condition determination under 18 USC § 4246 of a person

due for release:

SPC = 0229 4246 Determination of Mental Condition of

Person Due For Release

Under 18 USC § 4246(b), the court may order that a

psychiatric or psychological examination be conducted to

determine whether the person is suffering from a mental disease

or defect as a result of which the release would create a

substantial risk of bodily injury to another person or serious

damage to property of another.

The time allowed for a psychiatric or psychological

examination under 18 USC § 4246(b) is 45 days, with a 30 day

extension if approved by the court. The examination period

begins on the date of the court order.

P.S. 5880.28

February 21, 1992

Page 2 - 15

k. 4246 Hospitalization and Treatment. The SPC and

narrative for a hospitalization and treatment commitment under 18

USC § 4246 is:

SPC = 0230 4246 Hospitalization and Treatment

If, after a hearing, the court finds that the person is

presently suffering from a mental disease or defect as a result

of which release would create a substantial risk of bodily injury

to another person or serious damage to property of another, the

court shall commit the person to the custody of the Attorney

General as authorized under 18 USC § 4246(d).

A commitment under 18 USC § 4246(d) begins on the date of

the court order and is for an indefinite period of time that

continues until a state will assume responsibility for the

custody, care, and treatment of the person; or until the person's

mental condition is such that the release, or conditional release

under a prescribed regimen of medical, psychiatric, or

psychological care or treatment would not create a substantial

risk of bodily injury to another person or serious damage to

property of another, whichever is earlier.

If the 18 USC § 4246(d) commitment follows an 18 USC § 4245

commitment, the two commitments will run concurrently until

expiration of the sentence on the 18 USC § 4245 commitment and no

presentence time credit will be accrued. If the 18 USC § 4246(d)

commitment follows an 18 USC § 4241 or 4244 commitment, all time

spent in custody as a result of the offense that may lead to a

regular SRA or "old law"

P.S. 5880.28

February 21, 1992

Page 2 - 16

sentence that has not been credited against another sentence

shall be treated as presentence time credit.