In re Macklin

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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 21-FM-112


                       IN RE WENDELL MACKLIN, APPELLEE;

                       DISTRICT OF COLUMBIA, APPELLANT.


                          Appeal from the Superior Court
                           of the District of Columbia
                              (2019-MHE-002056)

                      (Hon. Jennifer A. Di Toro, Trial Judge)

(Argued May 26, 2022                                  Decided December 22, 2022)

        Holly M. Johnson, Senior Assistant Attorney General, with whom Karl A.
Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor
General at the time the brief was filed, Caroline S. Van Zile, Principal Deputy
Solicitor General, and Ashwin P. Phatak, Deputy Solicitor General, were on the
brief, for appellant.

      Kelsey Townsend, Public Defender Service, with whom Samia Fam and
Jaclyn S. Frankfurt, Public Defender Service, were on the brief, for appellee.

      Before BLACKBURNE-RIGSBY, Chief Judge, and EASTERLY and MCLEESE,
Associate Judges.

      Opinion for the court by Associate Judge MCLEESE.

      Dissenting opinion by Associate Judge EASTERLY at page 29.
                                         2

      MCLEESE, Associate Judge:       This case arises at the intersection of the

Incompetent Defendants Criminal Commitment Act (IDCCA), 

 et seq., and the Hospitalization of the Mentally Ill Act (also known as

the Ervin Act), 

 et seq. The trial court concluded that appellee

Wendell Macklin was entitled to release under those acts. We reverse.



                     I. Factual and Procedural Background



      Mr. Macklin was arrested in September 2018 and subsequently charged with

assault and attempted possession of a prohibited weapon (knife). A question arose

about whether he was competent to stand trial, and extensive further proceedings

ensued. During those proceedings, Mr. Macklin was ordered to St. Elizabeths

Hospital for inpatient examination and treatment.      Eventually, the trial court

determined in September 2019 that Mr. Macklin was incompetent and unlikely to

regain competence. That determination required that Mr. Macklin be either released

or civilly committed. Jackson v. Indiana, 

 (1972); 

(c)(4).



      The District of Columbia indicated that it intended to file a petition to have

Mr. Macklin civilly committed, and the trial court ordered Mr. Macklin held for
                                          3

further treatment pending the filing of that petition. 

(c)(4).

The District of Columbia filed a petition for civil commitment, alleging that Mr.

Macklin had been diagnosed with paranoid schizophrenia and was likely to injure

himself or others if not civilly committed. The trial court initially ordered that Mr.

Macklin receive inpatient treatment until the entry of a final order in the civil-

commitment case. 

(a)(2).



      In March 2020, the Commission on Mental Health held a hearing in the civil-

commitment case. At the hearing, the District of Columbia introduced evidence that

Mr. Macklin’s paranoid schizophrenia would likely lead to acts of aggression if Mr.

Macklin were not civilly committed. The Commission issued a written order finding

that Mr. Macklin was likely to injure himself if not committed and recommending

inpatient commitment for one year. The Commission’s order did not make a finding

about the likelihood that Mr. Macklin would injure others if he was not civilly

committed. The Commission’s order also did not make an explicit finding as to

whether inpatient commitment was the least restrictive alternative, although it noted

testimony to that effect.



      Proceedings in the civil-commitment case were delayed by the COVID-19

pandemic. In November 2020, the trial judge in the criminal case ordered that Mr.
                                          4

Macklin be released in that case but detained pending a hearing on the civil-

commitment petition. Mr. Macklin subsequently moved for release in the civil-

commitment case, arguing that he could be detained in that case only until the date

of the Commission hearing, which had already occurred.                    

(c)(1) (if trial court orders release in criminal case of defendant who has

been committed to an inpatient treatment facility, “inpatient treatment facility may

detain the person pending” Commission’s hearing on civil-commitment petition).

The trial court initially denied Mr. Macklin’s motion, concluding that Mr. Macklin

could be held under 

(d)(1) (if Commission finds that person is

mentally ill, person is likely to self-injure or injure others if not committed, and

inpatient treatment is least restrictive alternative to prevent such injury, “detention

for emergency observation and diagnosis may be continued” pending conclusion of

civil-commitment proceeding). Mr. Macklin filed a motion to reconsider, arguing

that § 21-526(d)(1) did not apply because Mr. Macklin had never been detained for

“emergency observation and diagnosis” in the first place. The trial court granted

reconsideration and ordered Mr. Macklin’s release in the civil-commitment case.
                                          5

                                    II. Mootness



      In this appeal, the District of Columbia challenges the trial court’s order

releasing Mr. Macklin from inpatient treatment while the civil-commitment

proceeding was pending. After this appeal was taken, the trial court entered a final

order in the civil-commitment case, finding that Mr. Macklin was mentally ill and

was likely to injure himself or others if not committed. The trial court ordered Mr.

Macklin to undergo outpatient treatment for a year.



      The parties agree that the final order in this case renders the current appeal

moot. Both parties argue that this court should nevertheless decide the appeal,

because the appeal presents an important and recurring issue of law and because the

issue would otherwise tend to evade review. See, e.g., In re Barlow, 

 (D.C. 1993) (deciding appeal that was technically moot, because of “short

duration” of challenged action and because appeal involved “overarching issues

important to the resolution of an entire class of future cases”) (brackets and internal

quotation marks omitted). We agree with the parties, and we therefore resolve the

appeal on the merits.
                                           6

                             III. Statutory Framework



             A. Involuntary Civil Commitment under the Ervin Act



      Involuntary civil-commitment proceedings are initiated by filing a petition

with the Commission on Mental Health alleging that a person is mentally ill and

therefore likely to self-injure or injure others if not committed.          

(a)(1). The petition must be supported by a certificate to that effect from a

physician or qualified psychologist.       

   After such a petition is filed, the

Commission must promptly examine the person and hold a prompt hearing. 

(a). The Commission then must promptly report to the trial court its

conclusion as to whether the person is mentally ill and therefore likely to self-injure

or injure others if not committed. 

. The trial court thereafter

must promptly hold a hearing or, if requested, a trial. 

. If the

person is not found to be both mentally ill and therefore likely to self-injure or injure

others, the civil-commitment petition must be dismissed. 

(b)(1).

If the person is found to be mentally ill and therefore likely to self-injure or injure

others if not committed, the court may order the person committed for a period of a

year. 

(b)(2). Such commitment can include hospitalization if
                                           7

the court concludes that hospitalization “is the least restrictive alternative consistent

with the best interests of the person and the public.” 

        B. Emergency Involuntary Hospitalization under the Ervin Act



      If there is reason to believe that immediate detention is necessary to prevent a

mentally ill person from self-injury or injury to others, the person may be taken into

custody without a warrant and transported to a hospital, and an application can be

made to have the person admitted for “emergency observation and diagnosis.” 

. Such an application triggers a series of procedural protections. The

hospital may admit the person as an inpatient only if a qualified person at the hospital

concludes that the person is likely to self-injure or injure others unless immediately

detained and that hospitalization is the least restrictive means of preventing such

injury. 

(a). The hospitalization may not last more than forty-

eight hours unless the hospital files a petition with the court seeking an order to

extend the hospitalization for a period of no more than seven days. 

. Within twenty-four hours of receiving such a petition, the court must

either approve the request or order the hospitalized person’s release. 

(a). In making that determination, the trial court must determine whether

“probable cause exists to believe that [the] person is likely to [self-injure or injure]
                                            8

others if not immediately detained.” In re Herman, 

 (D.C. 1993)

(en banc). If the hospitalized person requests a court hearing, the trial court must

hold a “full evidentiary hearing” within twenty-four hours of the request. In re

Herman, 

; 

. At that hearing, the hospitalized

person may contest the correctness of the trial court’s determination under § 21-524.

In re Herman, 

. If the trial court once again determines that there is

probable cause to believe that the hospitalized person is likely to self-injure or injure

others if not immediately detained, then the trial court may order that the person

“continue to be hospitalized for emergency observation and diagnosis.” 

.



      The hospital also must examine the person within forty-eight hours of the trial

court’s order under § 21-524 and must immediately release the person if, then or at

any time thereafter, the hospital determines that the person “is no longer mentally ill

to the extent that the person is likely to [self-injure or injure] others if not presently

detained.” 

(a)(1), (a)(2), (b)(1).



      The period for emergency hospitalization can be extended for up to twenty-

one days if a civil-commitment petition has been filed. 

(c). If

the Commission holds a hearing on the civil-commitment petition and finds that

inpatient commitment is the least restrictive alternative to prevent self-injury or
                                             9

injury to others, the “detention for emergency observation and diagnosis may be

continued” pending the completion of the civil-commitment proceeding. 

(d)(1). If the Commission finds that the person “is not mentally ill or if

mentally ill, is not mentally ill to the extent that he is likely to [self-injure or injure]

other persons if not committed, the Commission shall immediately order [the

person’s] release.” 

.



            C. Incompetent Criminal Defendants under the IDCCA



       If the court finds that a criminal defendant is unlikely to regain competence,

the court can order inpatient treatment for up to thirty days pending the filing of

civil-commitment petition. 

(c)(4). If a petition has been filed

within that period, the trial court has two options. First, the trial court can order that

inpatient treatment continue until a final order is issued in the civil-commitment

case. 

(a)(2). Second, the trial court can order the defendant’s

release in the criminal case. 

(c)(1). If the trial court chooses

the second option, the trial court must “remand the person to the inpatient treatment

facility and the inpatient treatment facility may detain the person pending a hearing

on the petition conducted pursuant to § 21-542.” Id. As a reminder, § 21-542

governs the hearing before the Commission on a civil-commitment petition. A
                                         10

defendant who has been detained under § 24-531.07(c)(1) has the right to demand a

“probable cause hearing on the person’s continued detention” “pursuant to

§ 21-525.” 

(c)(2). Such a hearing is held in the Family

Court, which is the division of Superior Court that handles civil-commitment

matters. See Super. Ct. Fam. R. (introductory note); Super. Ct. Ment. Health R. 1.

The hearing must be held within twenty-four hours. 

(c)(2).



                                     IV. Analysis



      We decide issues of statutory interpretation de novo. Roberts v. United States,

, 876 (D.C. 2019). “We first look to see whether the statutory language

at issue is plain and admits of no more than one meaning.” 

 (internal quotation

marks omitted). “The meaning—or ambiguity—of certain words or phrases may

only become evident when placed in context. Therefore, we do not read statutory

words in isolation; the language of surrounding and related paragraphs may be

instrumental to understanding them.” Tippett v. Daly, 

 (D.C.

2010) (en banc) (citation and internal quotation marks omitted). “We consider not

only the bare meaning of the word but also its placement and purpose in the statutory

scheme. Statutory interpretation is a holistic endeavor.” 

 (citation, ellipsis, and

internal quotation marks omitted).
                                           11

      “We will give effect to the plain meaning of a statute when the language is

unambiguous and does not produce an absurd result.” In re Z.M., 

,

1191 (D.C. 2022) (brackets and internal quotation marks omitted); see District of

Columbia v. Place, 

 (D.C. 2006) (“A court may refuse to adhere

strictly to the plain language of a statute in order to effectuate the legislative purpose

as determined by a reading of the legislative history or by an examination of the

statute as a whole.”) (brackets and internal quotation marks omitted). “When

interpreting statutes, we assume that the legislature acted logically and rationally and

we avoid interpretations of statutes which lead to implausible results.” Wade v.

United States, 

 (D.C. 2017) (internal quotation marks omitted).



        “[W]e consider statutory context and structure, evident legislative purpose,

and the potential consequences of adopting a given interpretation.” In re G.D.L.,

, 104 (D.C. 2020). “We may also look to the legislative history to

ensure that our interpretation is consistent with legislative intent.” Facebook, Inc.

v. Wint, 

, 628 (D.C. 2019) (brackets and internal quotation marks

omitted).



      Applying these principles, we conclude that a defendant who has been found

unlikely to regain competence and who has been released in the criminal case can
                                         12

properly be detained pursuant to 

(d) pending completion of the

civil-commitment process. We acknowledge that Mr. Macklin’s argument to the

contrary finds considerable support in the wording of § 21-526(d). In sum, Mr.

Macklin appears to argue the following: (1) § 21-526(d) authorizes “continued”

“detention for emergency observation and diagnosis”; (2) detention for “emergency

observation and diagnosis” occurs in the context of emergency hospitalization, e.g.,

; (3) the District of Columbia never sought to have Mr. Macklin

hospitalized on an emergency basis; and thus (4) there was no detention for

“emergency observation and diagnosis” to be continued. Rather, Mr. Macklin

contends, continued detention under § 21-526(d) of a criminal defendant found

unlikely to regain competence and released in the criminal case is permissible only

if a petition for emergency hospitalization has been filed.



      If the analysis were properly focused only on these provisions, Mr. Macklin’s

argument would seem quite persuasive. Mr. Macklin’s argument finds further

support from the principle that this court will “construe[] the [Ervin] Act narrowly

when its application may result in the curtailment of any person’s liberty.” In re

Walker, 

 (D.C. 2004) (internal quotation marks omitted). As we

have explained, however, statutory interpretation is a holistic task, and we must also

consider the language and structure of other provisions in the Ervin Act and the
                                          13

IDCCA. In our view, this broader inquiry weighs heavily against Mr. Macklin’s

argument, for several reasons.



            A. Continued Detention pursuant to 

      One important countervailing consideration is that other provisions of the

Ervin Act and the IDCCA seem to contradict Mr. Macklin’s theory. A defendant

who has been found unlikely to regain competence and who has been detained

pending a Commission hearing on a petition for civil commitment has the right to

demand a prompt “probable cause hearing on the person’s continued detention,”

“pursuant to § 21-525.” 

(c)(2). The purpose of a hearing

held under § 21-525 is to determine whether the trial court’s earlier ruling under

§ 21-524 was correct. In re Herman, 

. The issue for the trial court

under § 21-524 is whether to grant “a petition for hospitalization of a person for

emergency observation and diagnosis.” 

(a).



      Under the logic of Mr. Macklin’s argument, a trial court seemingly could not

order “continued detention” under § 24-531.07(c)(2) unless the District of Columbia

had already filed a petition for emergency involuntary hospitalization before the trial

court rules. That is because § 24-531.07(c)(2) permits detention pursuant to § 21-
                                         14

525, which in turn is directed at determining whether it was correct to grant “a

petition for hospitalization of a person for emergency observation and diagnosis.” If

no such petition has been filed, then—on Mr. Macklin’s theory—the trial court

apparently would have no basis under § 24-531.07 to grant continued detention

under § 21-525.



      To the contrary, we think it clear that § 24-531.07(c)(2) was intended to grant

the trial court authority to order continued detention without regard to whether the

District of Columbia had already filed a petition for emergency involuntary

hospitalization. Section 24-531.07(c)(2) is not limited by its terms to instances in

which such a petition has already been filed. Rather, it authorizes a hearing, upon

prompt request, any time a defendant has been remanded to an inpatient facility

under § 24-531.07(c)(1). Moreover, as we have explained, to order continued

detention under § 24-531.07(c)(2) the trial court must find that there is probable

cause to believe that the defendant is likely to self-injure or injure others if not

immediately detained.    That is precisely the finding that authorizes continued

detention of persons who have been involuntarily hospitalized on an emergency

basis. In re Herman, 

.
                                          15

      Limiting the trial court’s authority to order continued detention under

§ 24-531.07(c)(2) to cases in which a petition for emergency involuntary

hospitalization has already been filed would lead to consequences that we view as

unreasonable to the point of absurdity. The first issue is one of conflicting timelines.

Emergency involuntary hospitalization begins with an application to have a person

admitted to a hospital for purposes of emergency observation and diagnosis. 

. If the person is admitted, the hospital has forty-eight hours to file a

petition asking for continued detention for up to seven days. 

.

The court is then required to rule on that petition with twenty-four hours of receipt.

. If the person requests a hearing to challenge that ruling, the

trial court is then required to hold a hearing with twenty-four hours. 

.



      That timeline, though compressed, is incompatible with the stricter deadline

set by § 24-531.07(c)(2). That provision requires the trial court to hold a full

evidentiary hearing pursuant to § 21-525 within twenty-four hours of a request,

which request can be made immediately once the defendant is remanded to the

hospital under § 24-531.07(c)(1). Thus, unless the District of Columbia happened

to begin the process of emergency involuntary hospitalization some days before the

trial court even released the defendant in the criminal case, § 24-531.07(c)(2) in Mr.
                                         16

Macklin’s view might require the trial court to hold a full evidentiary hearing to

determine the correctness of a ruling that the trial court would not yet have made

about whether to grant a petition for involuntary emergency hospitalization that the

trial court had not yet even received.



      The problem is not limited to timing conflicts. On Mr. Macklin’s theory, the

trial court apparently would have to hold two separate, substantively identical “full

evidentiary hearings” on whether there was probable cause to believe that the

defendant was likely to self-injure or injure others if not immediately detained, one

hearing under § 24-531.07(c)(2) and one hearing under § 21-525. Depending on the

timing of events, those two hearings might occur quite closely in time. We think it

entirely implausible that the D.C. Council intended so unreasonable a result. Cf.,

e.g., McWatt v. Mattax, No. 03-13-00332-CV, 

, at *5 (Tex. App.

Mar. 18, 2015) (stating that it would be absurd to construe statute to require

duplicative hearings).



      We draw two conclusions from the foregoing discussion. First, the IDCCA

does not contemplate that the continued detention of defendants remanded to an

inpatient facility under § 24-531.07(c) would turn on whether the process of

emergency involuntary hospitalization has been started from the beginning. Rather,
                                          17

the IDCCA authorizes continued detention of such defendants if the trial court has

held an evidentiary hearing under § 24-531.07(c)(2) and has determined that there is

probable cause to believe that the defendant was likely to self-injure or injure others

if not immediately detained.



      Second, there is an apparent drafting error in the way in which the IDCCA

interacts with the Ervin Act. Although § 24-531.07(c)(2) contemplates continued

detention of defendants remanded to an inpatient facility, without a need for the

filing of a petition for emergency involuntary hospitalization, § 24-531.07(c)(2) does

so by cross-reference to provisions—§ 21-524 and § 21-525—that by their terms

seem to presuppose prior detention for emergency observation and diagnosis. For

the reasons already stated (and other reasons we discuss infra), we conclude that this

apparent drafting error does not require us to ignore the clear intent of the relevant

provisions or to adopt an absurd construction of the interaction between the IDCCA

and the Ervin Act. See, e.g., Chickasaw Nation v. United States, 

(2001) (“[C]ommon sense suggests that the cross-reference is simply a drafting

mistake.”). We do not have a general authority to “rescue [the legislature] from its

drafting errors, and to provide for what we might think is the preferred result.”

Lamia v. U.S. Tr., 

 (2004) (ellipsis and internal quotation marks

omitted). We do, however, have the authority, in extraordinary circumstances, to
                                          18

disregard “obvious technical drafting errors.” Niz-Chavez v. Garland, 

, 1480 n.1 (2021). We conclude that the present case is an appropriate occasion

to exercise that authority. Cf. Gilmore v. United States, 

(D.C. 1997) (construing “subsection” to mean “section,” thereby correcting “clerical

error” in order to avoid absurdity and give effect to legislature’s obvious intent).



      The foregoing discussion has focused on the consequences of the hearing held

under § 24-531.07(c)(2). No such hearing was held in the present case, because Mr.

Macklin choose not to avail himself of that procedural protection. The issue in the

present case is whether a defendant remanded to an inpatient facility under

§ 24-531.07(c)(1) can be held in the facility pending the resolution of civil-

commitment proceedings on the basis of a finding by the Commission that inpatient

commitment is the least restrictive alternative to prevent self-injury or injury to

others. 

(d). Essentially for the reasons already outlined, we

conclude that it would be absurd to require the release of such a defendant unless a

parallel process of emergency involuntary hospitalization had been initiated. It is

true that § 21-526(d) by its terms presupposes prior detention for emergency

observation and diagnosis. As we have already explained, however, we conclude

that this presupposition reflects a drafting error that can and should appropriately be

disregarded in order to avoid absurdity and give effect to clear legislative intent.
                                          19

                        B. Other Structural Considerations



      Several other structural considerations support the conclusion that defendants

who have been remanded to an inpatient facility under § 24-531.07(c)(1) can be

detained pending completion of civil-commitment proceedings if the Commission

finds that inpatient commitment is the least restrictive alternative to prevent self-

injury or injury to others.



      First, as previously noted, the trial court in the criminal case has two options

after finding that a criminal defendant is unlikely to regain competence: to direct that

inpatient treatment continue until a final order is issued in the civil-commitment

proceeding, 

(a)(2); or to remand the defendant to an inpatient

facility pending the Committee hearing, 

(c)(1). If the trial

court picks the first option, the defendant is detained without receiving any of the

procedural protections afforded to persons who are involuntarily hospitalized. (We

note that Mr. Macklin has suggested that 

(a)(2) may be

unconstitutional; that issue is not before us and we express no opinion on the issue.)

It would be quite strange if the second option were the diametric opposite:

defendants who are remanded under § 24-531.07(c)(1) must be given not only all of

the protections given to persons who are subject to emergency involuntary
                                          20

hospitalization but also the additional specific protection provided in § 24-531.07(c).

It is in our view far more reasonable to understand the second option, as we do, to

provide some but not all of the protections given to those who are involuntarily

hospitalized on an emergency basis.



      Second, the IDCCA in one respect clearly does not provide defendants

remanded under § 24-531.07(c) with all of the procedural protections provided to

persons who are involuntarily hospitalized on an emergency basis. Specifically, the

IDCCA permits such defendants to be held inpatient, without any further findings or

procedural protections, at least until a Commission hearing is held. 

(c)(1). That detention could last for some time, because there is no

specific time line for holding that hearing, which instead must simply be held

“promptly.” 

(a). It would be anomalous to permit detention

without such protections for that period of time but then permit further detention

only if defendants are given all of the protections provided to persons who are

involuntarily hospitalized on an emergency basis, starting from the beginning with

an application to be admitted to a hospital. It would be particularly anomalous to

terminate the authority for detention at the point where the Commission makes a

finding that supports continued detention, not release: that inpatient commitment is
                                          21

the least restrictive alternative to prevent self-injury or injury to others. 

(d).



      Finally, if the D.C. Council had intended that defendants remanded to an

inpatient facility under § 24-531.07(c)(1) be provided with all of the protections

afforded to those who are subject to emergency involuntary hospitalization, one

would think the Council would have stated that directly, rather than leaving that

conclusion to be divined from the presuppositions of provisions buried several cross-

references in. Cf., e.g., AMG Cap. Mgmt., LLC v. Fed. Trade Comm’n, 

, 1349 (2021) (“Congress does not hide elephants in mouseholes.”) (ellipses

and internal quotation marks omitted).



                               C. Legislative History



      The legislative history of the bill that became the IDCCA does not appear to

shed direct light on the issue before us. See Incompetent Defendants Criminal

Commitment Act of 2004, D.C. Council, Report on Bill 15-967 (Nov. 17, 2004). We

do note, however, that there is no mention in the Committee Report on that bill of

the idea that emergency involuntary hospitalization would be necessary to permit
                                         22

continued detention of defendants remanded under § 24-531.07(c)(1) to an inpatient

facility pending a Commission hearing.



      A year before the IDCCA was enacted, the D.C. Council enacted the

Prevention of Premature Release of Mentally Incompetent Defendants Amendment

Act of 2004. That Act contained a provision with language that is very similar to

that of § 24-531.07(c). See 

(a-1)(1) (2004 Supp.; repealed by

D.C. Law 15-358, § 201(b) (

 (June 10, 2005))) (“[I]f . . . the court

further determines that the person shall be released from further detention in the

criminal . . . proceeding, the court shall remand the person to the hospital and the

hospital may detain the person pending a hearing on the petition conducted pursuant

to D.C. Official Code § 21-542.”). The Committee Report for that bill also contains

no mention of the idea that emergency involuntary hospitalization would be

necessary to permit continued detention of defendants remanded to an inpatient

facility pending a Commission hearing.        Prevention of Premature Release of

Mentally Incompetent Defendants Amendment Act of 2004, D.C. Council, Report on

Bill 15-665 (July 8, 2004). The Report states that the bill was intended to “address

a gap within the District’s adult competency statute that could result in the release

of a criminal defendant who has been found mentally incompetent to stand trial and

ordered to be released from detention, but who may pose an imminent danger.” Id.
                                         23

at 1. The Report further stated that the bill “resolve[d] any ambiguity in the law and

strengthen[ed] the District’s ability to detain a mentally incompetent criminal

defendant until a civil commitment proceeding can be concluded thereby protecting

the public at large.” Id. at 4.



      Those general statements do not directly address the issue before us, but in

our view they tend to undermine rather than support the idea that emergency

involuntary hospitalization would be necessary to permit continued detention of

defendants who are remanded to an inpatient facility under 

(c)(1).



                   D. Adequate Protection of Liberty Interests



      Mr. Macklin argues that important liberty interests will be inadequately

protected if defendants remanded to an inpatient facility pursuant to

§ 24-531.07(c)(1) can be detained based on the Commission’s finding that inpatient

commitment is the least restrictive alternative to prevent self-injury or injury to

others. 

(d). We disagree. The protections afforded to such

defendants, though not precisely the same as those afforded to persons detained

solely on the basis of emergency involuntary hospitalization, are ample.
                                          24

      First,   defendants    remanded     to   an   inpatient   facility   pursuant   to

§ 24-531.07(c)(1) have the right to a judicial determination, after a full evidentiary

hearing held within twenty-fours of the request, as to whether there is probable cause

they are “likely to injure [themselves] or others if not immediately detained.” In re

Herman, 

; 

(c)(2); 

 and

-525. That finding is the proper “focus” of the judicial inquiry into the lawfulness

of emergency involuntary hospitalization. In re Herman, 

. It is true

that such defendants will not receive some of the antecedent protections provided to

those who are being involuntarily hospitalized on an emergency basis, such as an

examination by hospital officials before admission to the hospital. 

. It is also true, however, that such defendants are not being seized without

a warrant and brought to a hospital without prior judicial approval. Rather, they

have been remanded to the hospital by a judge after a finding that they are not likely

to regain competence. Moreover, a petition for civil commitment will already have

been filed as to such defendants, and that petition would have to be supported by a

certificate from a physician or qualified psychologist opining that the person is

mentally ill and therefore likely to self-injure or injure others if not committed. 

(a)(1), 24-531.07(c)(1).
                                           25

      Second, even if a defendant remanded to an inpatient facility under

§ 24-531.07(c)(1) chooses for some reason not to request a prompt judicial hearing,

inpatient commitment without any further finding can continue only to the point of

the Commission hearing. 

(c)(1). At that point, inpatient

commitment may continue only if the Commission finds that inpatient commitment

is the least restrictive alternative to prevent self-injury or injury to others. 

(d). It is true that the Commission is not required to make an explicit

finding about the immediacy of the danger. At least arguably, however, some

component of immediacy is reflected in the requirement that inpatient commitment

is the least restrictive alternative. Moreover, a defendant who wishes to contest an

issue of immediacy has the option of doing so by promptly requesting a judicial

determination of the issue.



      Finally, we note that Mr. Macklin may overstate the protection provided under

the approach he advocates. Consider the following scenario: (1) a defendant is

remanded to an inpatient facility, pursuant to § 24-531.07(c)(1); (2) the defendant is

kept in that facility up to the date of the Commission hearing, pursuant to the same

provision; (3) on the day of the hearing, the defendant is admitted to a hospital for

emergency observation and diagnosis, pursuant to 

; and (4) the

Commission then finds that inpatient commitment is the least restrictive alternative
                                         26

to prevent injury to self or others, pursuant to 

(d). Under the

plain language of § 21-526(d), the Commission can then order the “continued”

“detention for emergency observation and diagnosis” until the completion of the

civil-commitment process. That appears to be true even if no petition for continued

emergency involuntary hospitalization has yet been filed with the court pursuant to

.



                           E. Response to the Dissent



      Our reasoning differs from that of the dissent in two principal respects. First,

we disagree with the dissent’s interpretation of the plain language of 

(c)(2) and 

 and -525. As we explain more fully

supra at 13-17, § 24-531.07(c)(2) provides for a hearing to determine whether a

defendant’s detention can be “continued . . . pursuant to § 21-525.” Section 21-525

provides for a hearing to determine whether the trial court’s earlier ruling under

§ 21-524 was correct. In re Herman, 

. The issue for the trial court

under § 21-524 is whether to grant “a petition for hospitalization of a person for

emergency observation and diagnosis.” 

(a). Under the logic of

Mr. Macklin’s view (and that of the dissent), the plain language of the Ervin Act

would therefore preclude a trial judge from ordering any detention whatsoever under
                                         27

§ 24-531.07(c)(2) unless a defendant had already been hospitalized on an emergency

basis, because in the absence of such emergency hospitalization there is no basis for

“emergency observation and diagnosis.” In our view, the dissent’s contrary analysis

does not adequately address the plain language of the provisions. The dissent takes

the view that the words “pursuant to § 21-525” in § 24-531.07(c)(2) do not actually

mean that the requirements of § 21-525 (which in turn refer to the requirements of

§ 21-524) have to be met in order for a defendant to be detained. Post at 49-50. We

see no adequate basis for that view, which seems contrary to the plain language of

the provisions.



      Second, the dissent expresses uncertainty about the precise nature of our

holding. Post at 55-56. To summarize, for the reasons we have stated, we construe

the IDCCA and the Ervin Act to permit the continued detention of defendants who

have been found unlikely to regain competence and who have been detained under

(c)(1), even if the defendant has not been hospitalized on an

emergency basis, as long as the requisite findings under 

(c)(2) (and thus 

 and -525) or 

(d) have been made.       Specifically, although some language in those

provisions considered in isolation indicates that such detention would be permissible

only if the defendant had already been hospitalized on an emergency basis, we
                                         28

conclude that the drafters of the IDCCA overlooked that language and that it would

be absurd to treat that language as precluding continued detention.



                                  F. Conclusion



      In sum, we hold that defendants remanded to an inpatient facility pursuant to

§ 24-531.07(c)(1) can be detained pending the completion of civil-commitment

proceedings if the Commission finds that inpatient commitment is the least

restrictive alternative to prevent self-injury or injury to others.      

, -526(d). We note that the Commission in this case did not make an

explicit finding that inpatient commitment was the least restrictive alternative. Mr.

Macklin has not raised that issue in this appeal, however. For that reason, and

because the order at issue in this case no longer has any practical effect, we do not

reach the issue.



      For the foregoing reasons, we reverse the judgment of the Superior Court.



                                                          So ordered.
                                         29

      EASTERLY, Associate Judge, dissenting in part: Wendell Macklin, charged

with two misdemeanors, was detained pretrial after he missed several hearings in his

criminal case. The temporary detention to ensure his appearance for his criminal

trial morphed and extended when his counsel raised competency concerns and Mr.

Macklin was sent to St. Elizabeths Hospital. 1       Eventually, the criminal court

determined, pursuant to Jackson v. Indiana, 

 (1972), that Mr.

Macklin was incompetent to stand trial for the foreseeable future and thus could no

longer be held as a pretrial detainee; i.e., he was “Jackson’ed.”



      Thereafter, the District filed a petition to civilly commit Mr. Macklin via the

standard process laid out in subchapter IV of the Ervin Act. Ordinarily, an individual

subject to a civil commitment petition remains at liberty until the family court

decides that civil commitment is warranted—unless separate emergency

hospitalization procedures are pursued under subchapter III of the Ervin Act and a

showing is made that an individual is mentally ill and due to that illness presents an

immediate danger to themselves or others if not detained. The District never sought




      1
         Competence is an individual’s “present ability to consult with [their] lawyer
with a reasonable degree of rational understanding” and their “rational, as well as
. . . factual, understanding of the proceedings against [them].” 

(1).
                                         30

to make such a showing as to Mr. Macklin or request his emergency hospitalization

under subchapter III.



      The Incompetent Defendants Criminal Commitment Act (“IDCCA”) provides

a separate framework for immediate, temporary involuntary hospitalization: it

allows a Jackson’ed defendant to be held either by the criminal court until the family

court’s ruling on civil commitment—or, if the criminal court orders the release of

the individual from its custody and remands the individual to an inpatient treatment

facility, by that facility “pending” a hearing before the Commission on Mental

Health regarding the civil commitment petition, which results in a nonactionable

recommendation. See 

(c)(1). By the time the criminal court

relinquished Mr. Macklin from its custody and remanded him to St. Elizabeths,

however, he had already had his Commission hearing on the District’s civil

commitment petition. Thus, as the District acknowledges in its brief to this court,

any authority under the IDCCA to hold Mr. Macklin had expired.



      At this point, Mr. Macklin continued to be held seemingly without authority.

When he challenged his involuntary hospitalization, the District contended that, once

the authority to hold him under the IDCCA ended, he could be held under the

emergency hospitalization provisions of subchapter III of the Ervin Act, specifically
                                        31

§ 21-526(d)(1), even though the District had not initiated emergency hospitalization

procedures and no determination had been made that he posed an immediate danger

if not detained. The family court correctly rejected this argument and we should

affirm its ruling. 2



       Subsection 21-526(d)(1) authorizes “continued” “detention for emergency

observation and diagnosis . . . [p]ending the conclusion of judicial [commitment]

proceedings.” It plainly does not apply to Mr. Macklin because he was not detained

“for emergency observation and diagnosis” under subchapter III of the Ervin Act to

begin with. Rather, Mr. Macklin was held under a completely different statute that

makes no mention of § 21-526(d)(1): the IDCCA. Under § 24-531.07(c)(1) of the

IDCCA, Jackson’ed defendants like Mr. Macklin, who are the subject of a civil

commitment petition and released from criminal court custody, may be held only

“pending” a Commission hearing—an interim step in, not the conclusion of, a civil

commitment proceeding.       Subsection 24-531.07(c)(2) further limits detention

authority under § 24-531.07(c)(1) by giving people like Mr. Macklin the right to

seek their release via a probable cause hearing even before a Commission hearing

takes place. It confers this right by referencing subchapter III of the Ervin Act,



       I concur with my colleagues in the majority in concluding that we should not
       2

dismiss this case as moot and instead resolve it on the merits. See ante Part II.
                                         32

§ 21-525. But the whole of § 21-525, which affords such probable cause hearings

specifically to emergency detainees under a different timetable, does not apply to

Jackson’ed detainees so as to constrain the right to a probable cause hearing that

§ 24-531.07(c)(2) confers; nor does it logically compel treating Jackson’ed

defendants like Mr. Macklin as emergency detainees.



      Sections 21-526(d) and 24-531.07(c) have plain-language meanings that

support Mr. Macklin. But my colleagues in the majority decline to accept them. My

colleagues instead set forth a statutory scheme where a Jackson’ed defendant who

is released from criminal custody can be involuntarily hospitalized as if the

defendant were an emergency detainee until a court decides whether that defendant

should be civilly committed. Rather than articulate an affirmative analysis of the

statutes supporting their position, my colleagues focus on a perceived illogic in the

text of § 24-531.07(c)(2) that is in fact a product of their misinterpretation of the

plain language. They then discern a “drafting error” that they assert authorizes them

to effectively rewrite the Ervin Act and the IDCCA. They elide the distinction

between Jackson’ed defendants and emergency detainees and enlarge the District’s

detention authority in civil commitment proceedings. In so doing, they disregard the

Ervin Act’s animating objectives: to allow individuals who are subject to civil

commitment petitions to remain at liberty unless and until a court issues a final
                                         33

commitment order; to strictly limit emergency hospitalization to those situations in

which an individual presents an immediate danger to themselves or others; and to

impose a comprehensive quilt of procedural protections to ensure these aims are met.



      I would read §§ 21-526(d) and 24-531.07(c) as they are written and, if that

results in outcomes the legislature deems undesirable, allow the legislature to make

any fixes it deems necessary. Accordingly, I would affirm the family court’s

determination that, upon the expiration of detention authority under the IDCCA and

in the absence of the initiation of emergency hospitalization proceedings under

subchapter III of the Ervin Act, Mr. Macklin was entitled to release. I therefore

dissent.



                I.    A Plain-Language Reading of the Statutes 3



      The Ervin Act and the IDCCA and are two separate statutory frameworks,

enacted at two different times. While they relate in limited ways, I cannot agree with

the majority opinion’s conclusion that the “clear intent” of these provisions, ante at



      3
        To aid the reader in this plain-language reading, I have reproduced the
relevant statutory provisions in Appendix A, Excerpts from Subchapter III of the
Ervin Act; Appendix B, Excerpts from Subchapter IV of the Ervin Act; and
Appendix C, Excerpts from the Incompetent Defendants Criminal Commitment Act.
                                        34

17, is to authorize the detention of a Jackson’ed defendant like Mr. Macklin, who

has been released from criminal custody and has never been determined to be

immediately dangerous, as an emergency detainee. Ordinarily, “the intent of the

lawmaker is to be found in the language he [or she] has used.” Tippett v. Daly, 

 (D.C. 2010) (quoting Peoples Drug Stores, Inc. v. District of

Columbia, 

 (D.C. 1983) (en banc)). Here, the text of the Ervin

Act and the IDCCA—which my colleagues in the majority concede provides

“considerable support” for Mr. Macklin’s position, ante at 12—is clear and

controlling.



                               A.    The Ervin Act



      Enacted in 1965, the District of Columbia Hospitalization of the Mentally Ill

Act (the “Ervin Act”), 

 et seq., provides for both involuntary

civil commitment and temporary emergency hospitalization when an individual may

be a danger to themself or others. It sets out “a comprehensive statutory scheme” to

balance two competing concerns: the constitutional rights of people with mental

illnesses, and public safety (recognizing that people with mental illnesses are

members of the public and may need protection from themselves). See In re

DeLoatch, 

, 1345 (D.C. 1987) (per curiam) (internal quotation marks
                                          35

omitted). Thus, while the Act provides for the involuntary civil commitment of a

mentally ill individual in some circumstances, we have held that “the very core of

the Act is an explicit and expedited timetable” for determining whether commitment

is necessary, “at the conclusion of which the patient is either released or committed.”

In re Lomax, 

 (D.C. 1978) (en banc). More precisely, one might

say that the core of the Act is two interlocking “explicit and expedited” timetables.

One timetable, set forth in subchapter IV, §§ 21-541 to -551, applies when

determining whether a person may be involuntarily civilly committed (for no more

than a year at a time) because they are “mentally ill, and because of the illness[, are

at some point in the future] likely to injure [themselves] or other persons if not

committed.” 

(a)(1); see also 

 § 21-545(b)(2). The other

timetable, set forth in subchapter III, §§ 21-521 to -528, applies when determining

whether a person may be temporarily involuntarily hospitalized on an emergency

basis because there is “reason to believe that [the] person is mentally ill and, because

of the illness, is likely to injure [themselves] or others if . . . not immediately

detained.” Id. § 21-521 (emphasis added).



      In the context of civil commitments governed by subchapter IV, the Mental

Health Commission makes recommendations about the need to commit an

individual, but those recommendations have no immediate effect. Only the family
                                          36

court can make the final determination that civil commitment is needed and order

that individual be deprived of their liberty.       See id. § 21-544 (directing the

Commission to report its recommendation to the family court); see also In re Reed,

, 803 n.6 (D.C. 1990) (acknowledging that, even if the Commission

recommends judicial commitment at the § 21-542 hearing, an “individual remains at

liberty during the course of the [judicial] proceedings”); In re Holmes, 

 (D.C. 1980) (“The purpose of Commission proceedings is not to adjudicate the

issue of commitment in a final manner.”). The only exception to this rule is if the

person is hospitalized on an emergency basis pursuant to subchapter III.



      Subchapter III of the Ervin Act, titled “Emergency Hospitalization,”

authorizes the involuntary hospitalization of an individual before the family court

has issued a final civil commitment order in the case of “certified emergenc[ies].”

Lomax, 

 n.13. Emergency hospitalization may be initiated only by

a subset of those individuals qualified to initiate civil commitment under subchapter

IV. Compare 

 (listing officers of the Department of Mental

Health, officers qualified to make arrests, or particular doctors), with 

 § 21-541(a)

(adding spouses, parents, and legal guardians to the list). As the majority opinion

sets out, the initiation of emergency hospitalization “triggers a series of procedural

protections” that, precisely because of the immediate loss of liberty, involves
                                          37

timetables stricter than those governing civil commitment proceedings under

subchapter IV. Ante at 7-9.



      Subchapter III creates a limited exception to the default rule that an

“individual remains at liberty during the course of [judicial commitment]

proceedings,” Reed, 

 n.6, and it “evinces the intention of Congress

to permit emergency confinement for only short and precisely circumscribed

durations,” DeLoatch, 532 A.2d at 1345; see also In re Herman, 

, 964-

66 (D.C. 1993) (expressing our concern “that provision for emergency

hospitalization can create a potential for erroneous commitments and unlawful

detention” and noting that emergency hospitalization under the Ervin Act is subject

to “strict time limits” that “provide a second tier of protections against extended

deprivations of liberty”); Lomax, 

 (explaining that “[t]ime periods

from 24 to 48 hours are specified for emergency hospitalization, detention without

court order, and court review and determination of the need for further

hospitalization, which is in turn limited”).



         B.     The IDCCA and Detention of Incompetent Defendants



      The other statutory scheme that allows the immediate detention of individuals
                                         38

in the District who are believed to be mentally ill is the Incompetent Defendants

Criminal Commitment Act, 

 et seq., which was enacted 40

years after the Ervin Act, in 2005. But the IDCCA was born of different concerns

and employs a different framework than the Ervin Act.



      Under the Fifth and Fourteenth Amendments of the U.S. Constitution, an

individual deemed “incompetent” to stand trial may not be prosecuted. Hargraves

v. United States, 

 (D.C. 2013) (citing Medina v. California, 

 (1992)); see also U.S. Const. amends. V, XIV; 

(a). As defined by the IDCCA, see supra note 1, competence has

nothing to do with dangerousness and thus has no direct relationship to the standards

for civil commitment or emergency hospitalization under subchapters III and IV of

the Ervin Act. In addition to the provisions of the IDCCA that set forth procedures

for determining whether an individual is competent and for restoring competency

where possible (during which time the individual may be in the community4), the

IDCCA also addresses the criminal and family courts’ authority to retain custody

over a defendant who has been found incompetent and unlikely to regain




      4
        See §§ 24-531.03 to .04 (allowing the criminal court to order inpatient or
outpatient evaluations); id. § 24-531.05 (allowing the criminal court to order
inpatient or outpatient “treatment for restoration of competency”).
                                            39

competency in the foreseeable future—called a “Jackson” finding pursuant to the

Supreme Court’s decision in Jackson v. Indiana, 

 (1972).



       In Jackson, the Supreme Court held that there are due process limitations on

how long a criminal court may hold an incompetent defendant prior to trial while

waiting to see if the defendant will become competent, and that once a criminal court

makes a finding that someone will not become competent, “the State must either

institute the customary civil commitment proceeding that would be required to

commit . . . any . . . citizen, or release the[m].”5 

. In line with this mandate,

the IDCCA acknowledges that releasing a defendant may be the appropriate

outcome after a Jackson finding.         

(c)(4) (allowing for

release); 

 § 24-531.07(a)(1) (requiring release if a civil commitment petition has

not been filed within the statutory timeframe). As the majority opinion describes, it

also includes a number of circumstances under which a Jackson’ed defendant may

continue to be held, either by the criminal court or an inpatient treatment facility,

pending evaluation of a defendant’s dangerousness for the purposes of civil




      5
         The Court also held that indefinitely institutionalizing an incompetent
criminal defendant using “a more lenient commitment standard” than that applied
“to all others [facing civil commitment but] not charged with [criminal] offenses”
violates the Equal Protection Clause. Jackson, 

.
                                          40

commitment. See ante at 9-10.6



      Here, the provision of the IDCCA of central interest is 

(c). Subsection (c)(1) provides that, if the criminal court “orders the

release of a [Jackson’ed defendant] in the criminal case . . . and a petition for civil

commitment has been filed” under subchapter IV of the Ervin Act, then “the court

shall remand [that] person to the inpatient treatment facility” and that facility “may

detain the person pending a hearing [by the Mental Health Commission] on the

petition conducted pursuant to” subchapter IV.         

(c)(1)

(emphasis added). If the person is detained under subsection (c)(1) pending a

hearing on their civil commitment petition, then they have a time-limited right

(within seven days of remand) under subsection (c)(2) to seek “a probable cause

hearing on [their] continued detention” in family court, “pursuant to § 21-525” of

subchapter III of the Ervin Act. Id. § 24-531.07(c)(2). By its plain text, subsection

(c)(2) imports the “probable cause” inquiry this court has held is required under




      6
         Among these circumstances, 

(a)(2) permits criminal
courts to hold Jackson’ed defendants until the family court rules on their civil
commitment if such proceedings are pending. Mr. Macklin expresses skepticism
that this provision is consistent with the constitutional mandate of Jackson. I agree
that the majority opinion need not address that question in this case, but if it avoids
this question, it should not treat 

(a)(2) as a foundation for its
analysis. But see ante at 19-20.
                                          41

§ 21-525. See Herman, 

 (explaining that the hearing provided under

§ 21-525 is one to assess “the present mental condition of the person involved and

whether or not probable cause exists to believe that person is likely to injure himself

or herself or others if not immediately detained”); see also ante at 24 (stating that

“defendants remanded to an inpatient facility pursuant to § 24-531.07(c)(1) have the

right to a judicial determination” under the Herman standard). If the criminal court

operating under § 24-531.07(c)(2) concludes that the requisite probable cause does

not exist, then there is no longer any statutory authority for the Jackson’ed defendant

to be held pending their Commission hearing and they are restored their presumptive

right to liberty, enjoyed by any other person in civil commitment proceedings. See

Reed, 

 n.6. If the requisite probable cause is discerned—or if, as in

this case, a probable cause hearing under (c)(2) is never sought—a Jackson’ed

defendant may be held for the duration authorized under (c)(1), which is until the

Commission hearing.



  C.     Reading the IDCCA and Ervin Act Together, the Family Court Was

                                       Correct



       Under the plain-language reading of the IDCCA and the Ervin Act, the family

court was correct to order Mr. Macklin be released in the absence of any statutory
                                         42

authority to involuntarily hospitalize him (1) under the Ervin Act as an emergency

detainee or (2) under the IDCCA after his Commission hearing.



      Manifestly, neither the Ervin Act nor the IDCCA provides the District the

authority to detain a Jackson’ed defendant as an emergency detainee under 

(d)(1) or more generally under any other provision of subchapter III

of the Ervin Act. The Ervin Act, and subchapter III in particular, does not say

anything about Jackson’ed defendants—unsurprisingly, since this legislation was

enacted before the Supreme Court decided Jackson. And, although the IDCCA

confers some authority outside the Ervin Act to involuntarily hospitalize a

Jackson’ed defendant, that authority is limited and not tied to a defendant’s status

(or not) as an emergency detainee:



   • A Jackson’ed defendant may be placed in extended inpatient treatment

      by the criminal court for a limited time (30 days with the possibility of

      a five-day extension) to permit the District to file a civil commitment

      petition. 

(a). If the District does not file such a

      petition, the Jackson’ed defendant must be released from criminal

      custody; they cannot be automatically held as an emergency detainee.

      

 § 24-531.07(a)(1).
                                       43



• If the District files a civil commitment petition and the criminal court

   retains custody of the defendant (but query under Jackson how long the

   criminal court may lawfully do so, see supra note 5), the IDCCA

   authorizes continued detention of a Jackson’ed defendant until a

   judicial ruling on civil commitment, but the defendant is held under the

   IDCCA, not as an emergency detainee. Id. § 24-531.07(a)(2).



• If the District files a civil commitment petition but the court determines

   that continued criminal custody is not merited, the Jackson’ed

   defendant is remanded for continued inpatient detention only “pending

   [their Commission] hearing” (which should be held promptly, see id.

   § 21-542(a)),   again    not   as   an   emergency     detainee.      Id.

   § 24-531.07(c)(1).



• And while that hearing is pending, the Jackson’ed defendant may

   challenge their continued inpatient detention before the court,

   prompting the same probable cause assessment to which emergency

   detainees are entitled under § 21-525. Id. § 24-531.07(c)(2). That said,

   the whole of § 21-525 does not apply to the Jackson’ed defendant. The
                                        44

      § 21-525 allowance of a hearing upon request does not override and

      defeat the seven-day limit under § 24-531.07(c)(2) to request a

      § 21-525-type probable cause hearing.      Likewise, the requirement

      under § 21-525 that the individual seeking a hearing be held pursuant

      to § 21-524 does not override and defeat the express directive under

      § 24-531.07(c)(2) that a Jackson’ed defendant who has been released

      from criminal custody and remanded to an inpatient treatment facility

      pending a Commission hearing, by virtue of their status as such an

      individual, is entitled to a § 21-525-type probable cause hearing. See

      supra.



      The bottom line is that the IDCCA confers authority to continue to hold a

Jackson’ed defendant under precisely defined procedural circumstances separate

and apart from subchapter III of the Ervin Act; it does not provide a shortcut to an

emergency hospitalization thereunder. And the IDCCA only allows involuntary

hospitalization of a Jackson’ed defendant who has been released from criminal

custody for a limited amount of time—at the outer boundary, up to the defendant’s

Commission hearing.      Thereafter, like any other person in civil commitment

proceedings, an individual who was a Jackson’ed defendant is presumptively

permitted to be free in the community between the Commission hearing and the final
                                           45

court order on their commitment. See Reed, 

 n.6. Thus, if the District

wishes to detain a former criminal defendant beyond this time on an emergency

basis, it must take the steps to initiate that process per subchapter III of the Ervin

Act. 7



         My colleagues in the majority express concern that these two statutes operate

awkwardly together in certain scenarios or require less than my colleagues’ ideal

expenditure of resources. But the text of these statutes is plain, and their commands

are far from so absurd or unworkable that they require judicial revision. Cf. Reed,

 n.6 (approving of a scheme wherein an involuntarily hospitalized

person is released but subject to the institution of additional detention proceedings);

see infra Section II.B (discussing the drafting-error doctrine). And if some other

process is preferable as a matter of policy, then it is within the Council’s exclusive



        The majority opinion asserts that Mr. Macklin “may overstate the protection
         7

provided under” his plain-language reading of the Ervin Act and the IDCCA, and
then provides a hypothetical in which the District takes steps to pursue emergency
detention of Jackson’ed defendant under subchapter III of the Ervin Act. Ante at 25-
26. Regardless of whether the District, having initiated emergency detention and
diagnosis under 

, can seek continued detention under
§ 21-526(d) without complying with § 21-523—the hypothetical scenario
presented—the point here is that the District did not seek emergency hospitalization
of Mr. Macklin under subchapter III of the Ervin Act or ever obtain an assessment
that he presented an immediate danger to himself or others. Consequently, this
hypothetical offers little to detract from the merits of the plain-language reading in
this case.
                                          46

purview to amend the statutes accordingly. Lamie v. United States Trustee, 

 (2004) (stating that, if the legislature “enacted into law something different

from what it intended, then it should amend the statute to conform it to its intent”;

“[i]t is beyond our province to rescue [the Council] from its drafting errors, and to

provide for what we might think is the preferred result” (ellipsis and internal

quotation marks omitted)).



      Moreover, a plain-language reading of the IDCCA and the Ervin Act that

requires the District to initiate emergency detention procedures when it wishes to

treat a former criminal defendant as an emergency detainee respects the broader aims

of the Ervin Act to protect the rights of people with mental illnesses. 8 Reed, 

. This court is obligated to construe the Act’s provisions “narrowly, even

grudgingly,” given the “drastic curtailment” of a person’s liberty that may result

from its application. Lomax, 

 (noting that the Act was “designed

with a view to securing at last the civil and constitutional rights” of “long-neglected”

people with mental illnesses, and that it aims to ensure that “no one [is] hospitalized

involuntarily for a prolonged period unless a judge or jury [finds] the patient to be




      8
         Although the majority opinion announces it will “look to the legislative
history” to aid its interpretation, ante at 11, it leaves out any consideration of the
legislative history of the Ervin Act.
                                           47

both mentally ill and likely to injure [themselves] or others”); see also DeLoatch,

532 A.2d at 1345 (observing that the Ervin Act reflects a “profound congressional

concern for the liberties of [people with] mental[] ill[ness]” (internal quotation

marks omitted)). If anything, the enforcement of demanding procedural protections

is a desired feature of the Ervin Act, not an unwanted bug; this court has described

the “explicit and expedited” timetables of the statute as its “very core.” Lomax, 

. We therefore should not be looking to expand the reach of the limited

detention authority the Act permits, absent clear statutory indication this was

intended.



                      II.    The Majority Opinion’s Analysis



      The majority opinion clearly disagrees with the conclusion I draw above, but

little else of its interpretive work is rendered with the same clarity. As a result, it is

difficult to discern the foundations for the majority opinion’s conclusion that Mr.

Macklin could be held under 

(d) after the power to hold him

under 

(c)(1) had expired. But it is clear my colleagues in the

majority do not rely on the plain text of these statutes.
                                        48

                      A.    Lack of Statutory Foundation



      My colleagues in the majority conclude that Jackson’ed defendants like Mr.

Macklin, who have been released from criminal custody and remanded to inpatient

treatment, but can no longer be held under § 24-531.07(c) of the IDCCA, can

“properly be detained pursuant to . . . § 21-526(d)” of subchapter III of the Ervin

Act, ante at 11-12, which permits the extension of a person’s “detention for

emergency observation and diagnosis.” They do not attempt to reach this conclusion

by walking through the plain language. They could not, given that nothing in the

IDCCA incorporates § 21-526(d) into its operation, nor does any part of the IDCCA

contemplate “detention for emergency observation and diagnosis” under the Ervin

Act. The plain language notwithstanding, the majority opinion determines that it

would be absurd for the IDCCA not to allow continued detention of a Jackson’ed

defendant like Mr. Macklin under § 21-526(d).



      The majority opinion’s perceived “absurdity” rests entirely on the reference

in § 24-531.07(c)(2) of the IDCCA to § 21-525 of the Ervin Act. Ante at 13-16. The

majority opinion asserts that, since § 24-531.07(c)(2) provides for a hearing

“pursuant to § 21-525,” under “the logic of Mr. Macklin’s argument” a criminal

court “could not order ‘continued detention’ under § 24-531.07(c)(2) unless the
                                         49

District of Columbia had already filed a petition for emergency involuntary

hospitalization” per the Ervin Act. Ante at 13. It then argues that “[l]imiting the

trial court’s authority to order continued detention under § 24-531.07(c)(2) to cases

in which a petition for emergency involuntary hospitalization has already been filed

would lead to consequences that we view as unreasonable to the point of absurdity.”

Ante at 15. But the logical fallacy the majority opinion perceives is a product of its

own unreasonable interpretation of § 24-531.07(c)(2)’s reference to § 21-525.



      The majority opinion reads § 24-531.07(c)(2)’s reference to § 21-525 as

imposing all the requirements of § 21-525 on a Jackson’ed defendant, in particular,

the requirement that the person requesting the hearing be one “whose continued

hospitalization is ordered under section 21-524,” i.e., someone who has already been

hospitalized on an emergency basis. That is an unreasonable reading of the text.

The reference to § 21-525 cannot import the entirety of that provision, given the

incompatibilities noted supra Section I.C, including § 21-525’s restrictions on who

gets a “probable cause hearing” (only emergency detainees). Instead, as explained

supra Sections I.B & C, the reference to a “probable cause hearing” under § 21-525

in § 24-531.07(c)(2) gives Jackson’ed defendants detained under (c)(1) (who are not

emergency detainees) a time-limited right to the same “probable cause” type inquiry
                                          50

required under this court’s decision in Herman. 9 See 

. The plain

text compels this understanding. But even if the majority opinion disagrees that this

is the only way to read the language of (c)(2), at the very least the statutory language

can be reasonably read in this manner, and the existence of a reasonable

interpretation of the statute precludes any absurdity analysis. See Wright v. United

States, 

 (D.C. 1974) (stating that “absurdity is a result courts

should view with disfavor” unless “a statute fairly leaves no room for construction

to avoid such a result”). But see ante at 17-18.



      The majority opinion’s perceived logical fallacy in the operation of

§ 24-531.07(c)(2) and § 21-525 is not only without basis, it is a distraction. Mr.

Macklin’s argument is that the District’s detention authority ended following his

Commission hearing under § 24-531.07(c)(1). He does not argue that interpreting

§ 24-531.07(c)(2) is necessary to his claims at all. Indeed, he never had a subsection



      9
         Later, the majority opinion asserts that the purpose of a subsection (c)(2)
hearing is “to determine whether a defendant’s detention can be ‘continued . . .
pursuant to § 21-525.’” Ante at 26. This is the closest the majority opinion gets to
a plain-language analysis, but it abridges what (c)(2) says. The “continued
detention” referenced under (c)(2) refers back to the detention authorized under
(c)(1). 

(c)(2) (“Within 7 days of the remand order, a person
so detained [under (c)(1)] may request a probable cause hearing on the person’s
continued detention before the Family Court of the Superior Court of the District of
Columbia pursuant to § 21-525, in which case a hearing shall be held within 24 hours
after the receipt of the request.” (emphasis added)).
                                            51

(c)(2) hearing during which a court could consider his “continued detention” under

(c)(1). Moreover, the District has never argued that it had the authority to continue

to detain Mr. Macklin under § 21-525, a fact not mentioned the majority opinion.

The District argued that, after the authority to detain Mr. Macklin under

§ 24-531.07(c)(1) expired, it could continue to involuntarily hospitalize him under

§ 21-526(d). The majority opinion makes no argument as to that statutory provision,

fallacious or otherwise; rather, it practically ignores it.



                   B.     Misuse of the Drafting-Error Doctrine



       Having derived a logical fallacy from a misreading of the plain text of

§ 24-531.07(c)(2), the majority opinion calls the implications of that fallacy

“absurd” and then declares it has discovered a “drafting error” in the IDCCA. Ante

at 18. 10




       10
          This too was not briefed by the parties. The government never argued that
there was a drafting error in either the Ervin Act or the IDCCA. In its initial brief
the government maintained that the plain text of the Ervin Act and the IDCCA
supported its continued detention of Mr. Macklin after his Commission hearing. In
its reply brief the government abandoned this argument and argued that these statutes
were ambiguous and reasonably interpreted to support Mr. Macklin’s continued
detention.
                                           52

      At the outset, I note that it is far from clear that it is appropriate to locate a

“drafting error” in one statutory scheme (the IDCCA) based on its assertedly

awkward relationship to an entirely separate statutory scheme (the Ervin Act),

enacted decades prior. The majority opinion cites no analogous examples. But such

inter-statutory interactions are predictably complex and imperfect, implicating

policy decisions best left to legislators. Even assuming that such a conclusion might

be appropriate in some circumstances, however, the majority offers no foundation

for its discernment of a drafting error in this case other than the apparently disfavored

outcomes the pertinent statutes yield as written. See ante at 17-18, see also id. at 27-

28. 11 This flies directly in the face of the drafting-error doctrine.



      While courts on limited occasions and, in the majority’s words, “in

extraordinary circumstances,” ante at 17, take it upon themselves to step in where

there are clear errors introduced in the legislative drafting process, it is difficult to



      11
          The majority opinion appears to consider “continued detention” of
Jackson’ed defendants like Mr. Macklin—who have been released from criminal
custody and remanded to inpatient treatment under (c)(1), but may no longer be held
under that provision—to be the presumptive norm that must be rebutted. See, e.g.,
ante at 28 (explaining that language it identifies as problematic under its logical
fallacy argument, see supra, cannot reasonably be “treat[ed] . . . as precluding
continued detention.” (emphasis added)). But the presumptive norm is liberty, and
language to authorize the deprivation of liberty must be found within the operative
statutory language.
                                          53

discern either the extraordinary circumstances or the clear error that would justify

the majority’s intervention. None of the potential “absurdities” that the majority

identifies—strict timetables, rigorous due process, a requirement of diligence on the

part of the District 12—compare remotely to the obvious errors that courts have

previously seen fit to correct. For example, this case is nothing like Gilmore v.

United States, 

 (D.C. 1997), cited by the majority opinion ante at 18,

where this court determined a definitional provision’s use of the word “subsection”

instead of “section” was an obvious “clerical error” that had the effect of making the

definitional provision apply only to itself, rendering it “pointlessly circular.” 

; see also 

 (collecting cases including where, for example, there

was a manifest “scrivener’s error . . . made by someone unfamiliar with the law’s

object” (internal quotation marks omitted)). Chickasaw Nation v. United States, 

 (2001), similarly lends no support to the majority opinion’s invocation of

this doctrine. In that case, the Supreme Court ignored one manifestly unrelated

statutory provision in a list of cross-referenced statutes because “common sense



      12
          Given that 

(a) plainly places the burden on the
District to, as an initial matter, timely file a civil commitment petition in order to
continue to detain a Jackson’ed defendant, it is unclear why the majority opinion,
ante at 15-16, finds it so implausible that the statute would similarly require the
District to file an application for emergency hospitalization around the same time
should it wish from the outset to have greater detention authority over that defendant;
the District by necessity would already be aware of the defendant and their mental
condition.
                                          54

suggest[ed]” its inclusion was a “drafting mistake.” 

.



      Thus, in Niz-Chavez v. Garland, 

 (2021), the Court explained

that this doctrine “applies only in exceptional circumstances to obvious technical

drafting errors,” which had no application in that case where the question was

whether Congress intended a statute to be as procedurally demanding as its plain text

indicated. 

 at 1480 n.1. Similarly in Lamie v. United States Trustee, 

 (2004), the Supreme Court hewed to the plain language of the statute

notwithstanding the fact that it led to “a harsh outcome” and explained that its

“unwillingness to soften the import of Congress’ chosen words” was grounded in

“deference to the supremacy of the Legislature.” 

 (internal quotation marks

omitted). This court is likewise bound to defer to the statutory text as enacted by the

Council and should not second-guess its policy objectives.



                           C.     Rewriting the Statutes



      Having thus expanded the drafting-error doctrine, the majority opinion

announces that a Jackson’ed defendant who is released from criminal custody and

can no longer be held under 

(c) of the IDCCA can be

involuntarily hospitalized as if they were an emergency detainee until a court decides
                                          55

whether they should be civilly committed. But where exactly is the “error” in the

text that the majority purports to fix, and what exactly is the nature of that fix?



      The majority opinion first puts forth that § 24-531.07(c)(2)’s “cross-reference

to provisions [] § 21-524 and § 21-525 [] that by their terms seem to presuppose

prior detention for emergency observation and diagnosis” is an “apparent drafting

error.” Ante at 17; see also id. at 27-28. Because § 24-531.07(c)(2) does not actually

refer to § 21-524, its reference to § 21-525 is left as the remaining possible error.

But if the majority aims to suggest that the Council meant to point to a different

statutory provision, it does not say so or identify the intended referent. And if the

majority’s solution is to excise the reference to § 21-525 from the IDCCA, then it

also excises the basis on which it concludes that a § 24-531.07(c)(2) hearing

provides the same protections as the provisions of the Ervin Act pertaining to

emergency hospitalization, ante at 24.



      The majority opinion next points to the “presupposition” in § 21-526(d) of the

Ervin Act that a person must have been detained “for emergency observation and

diagnosis” before the District may extend their detention through the conclusion of

civil commitment proceedings, and concludes that this is “a drafting error that can

and should appropriately be disregarded.” Ante at 18; see also id. at 27-28. But the
                                          56

majority opinion cannot possibly mean that, in enacting the IDCCA, the Council

wrote a “drafting error” into the Ervin Act enacted 40 years earlier, thereby

permitting this court to simply strike out language from § 21-526(d). And, as already

stated, the IDCCA makes no mention of § 21-526 that might be “disregarded.”



      As a third alternative, the majority opinion implies that it was a “drafting

error” for the Council to provide in § 24-531.07(c)(1) for detention “pending a

hearing on the petition conducted pursuant to § 21-542” when it meant to write

“pending the completion of civil-commitment proceedings if the Commission finds

that inpatient commitment is the least restrictive alternative to prevent self-injury or

injury to others.” Ante at 28. But that difference is much more than a slip of the pen

or a transposition error that this court might justifiably correct. Accordingly, the

decision whether to make such an amendment should be reserved to the Council.



      Ultimately, the majority opinion does not precisely identify the drafting error

it is correcting. It simply asserts that “the drafters of the IDCCA overlooked” how

all of the provisions discussed above interact.       Ante at 28 (citing 

, -525, -526(d) & 24-531.07(c)(1)&(2)). And thus it becomes clear: the

majority opinion is not in fact correcting an identifiable textual error in the Ervin

Act or the IDCCA. It is simply rewriting the law.
                                          57

                                    *     *      *



      The legislature, per § 24-531.07(c)(1) of the IDCCA, deemed it necessary to

authorize the continued detention of former criminal defendants who have been

Jackson’ed, released from criminal custody, and are the subject of civil commitment

petitions, for a limited period of time—“pending” their (“prompt[]”) Commission

hearing. Id., see also 

(a). After this point, this group of former

criminal defendants is statutorily restored to the liberty that all other individuals

awaiting a final civil commitment order are presumed to enjoy unless a petition for

emergency hospitalization is filed. This is hardly absurd. Jackson’ed defendants

are not presumptively immediately dangerous, and, in the absence of a legitimate

basis to hold them after the conclusion of their criminal cases, their eventual release

is constitutionally demanded. In disregard of the plain language of the operative

statutes, my colleagues in the majority hold that Jackson’ed defendants who can no

longer be held under § 24-531.07(c)(1) of the IDCCA may be shunted into

subchapter III of the Ervin Act so as to authorize their continued hospitalization

under 

(d) as emergency detainees (but without a determination

that they are immediately dangerous). I disagree that they have the authority to

effectively rewrite how the Ervin Act and the IDCCA should interact.
                                   58

For these reasons, I respectfully dissent.
                                           59

                                    APPENDIX A:

   Subchapter III of the Ervin Act, “Emergency Hospitalization” (excerpts)

§ 21-521. Detention of persons believed to be mentally ill; transportation and
application to hospital.

       An accredited officer or agent of the Department of Mental Health of the
District of Columbia, or an officer authorized to make arrests in the District of
Columbia, or a physician or qualified psychologist of the person in question, who
has reason to believe that a person is mentally ill and, because of the illness, is likely
to injure himself or others if he is not immediately detained may, without a warrant,
take the person into custody, transport him to a public or private hospital, or to the
Department, and make application for his admission thereto for purposes of
emergency observation and diagnosis. . . .


§ 21-522. Examination and admission to hospital; notice.

(a) Subject to the provisions of section 21-523, the administrator of a private hospital
may, and the administrator of a public hospital or the chief clinical officer of the
Department or his designee shall, admit and detain for purposes of emergency
observation and diagnosis a person with respect to whom application is made under
section 21-521, if the application is accompanied by a certificate of a psychiatrist,
qualified physician, or qualified psychologist on duty at the hospital or the
Department stating that he or she:

      (1) Has examined the person;

      (2) Is of the opinion that the person has symptoms of a mental illness and,
because of the mental illness, is likely to injure himself or others unless the person
is immediately detained; and

      (3) Is of the opinion that hospitalization is the least restrictive form of
treatment available to prevent the person from injuring himself or others.

...
                                          60

§ 21-523. Court order requirement for hospital detention beyond 48 hours;
maximum period for observation.

A person admitted to a hospital or the Department under section 21-522 may not be
detained in the hospital or by the Department for a period in excess of 48 hours from
the time of the person’s admission, unless the administrator of the hospital, the chief
clinical officer of the Department, or the administrator’s or chief clinical officer’s
designee has, within that period, filed a written petition with the court for an order
authorizing the continued detention of the person for emergency observation and
diagnosis for a period not to exceed 7 days from the time the order is entered.


§ 21-524. Determination and order of court.

(a) Within a period of 24 hours after the court receives a petition for hospitalization
of a person for emergency observation and diagnosis, filed by the administrator of a
hospital or chief clinical officer of the Department pursuant to section 21-523, the
court shall:

      (1) order the hospitalization; or

      (2) order the person’s immediate release.

(b) The court, in making its determination under this section, shall consider the
written reports of the agent, officer, physician or qualified psychologist who made
the application under section 21-522, the certificate of the examining psychiatrist or
examining qualified psychologist which accompanied it, and any other relevant
information.


§ 21-525. Hearing by court.

      The court shall grant a hearing to a person whose continued hospitalization is
ordered under section 21-524, if he requests the hearing. The hearing shall be held
within 24 hours after receipt of the request.
§ 21-526. Extension of maximum periods of time.

...
                                         61

(c) The maximum period of time for detention for emergency observation and
diagnosis may be extended for up to 21 days, if judicial proceedings under
subchapter IV of this chapter have been commenced before the expiration of the
order entered under section 21-524 and a psychiatrist or qualified psychologist has
examined the person who is the subject of the judicial proceedings and is of the
opinion that the person being detained remains mentally ill and is likely to injure
himself or others as a result of the illness unless the emergency detention is
continued. For good cause shown, the Court may extend the period of detention for
emergency observation and diagnosis. The period of detention for emergency
observation and diagnosis may be extended pursuant to section 21-543(b) or
following a hearing before the Commission pursuant to subsections (d) and (e) of
this section.

(d) If the Commission, at the conclusion of its hearing pursuant to section 21-542
[reviewing a petition for civil commitment], has found that the person with respect
to whom the hearing was held is mentally ill and, because of the mental illness, is
likely to injure himself or others if not committed, and has concluded that a
recommendation of inpatient commitment is the least restrictive alternative available
to prevent the person from injuring himself or others, the detention for emergency
observation and diagnosis may be continued by the Department or hospital —

      (1) Pending the conclusion of judicial proceedings under subchapter IV of this
chapter [governing civil commitment];

      (2) Until the Court enters an order discharging the person; or

       (3) Until the Department or hospital determines that continued hospitalization
is no longer the least restrictive form of treatment appropriate for the person being
detained.

...
                                          62

                                   APPENDIX B:

      Subchapter IV of the Ervin Act, “Commitment Under Court Order”
                                  (excerpts)

§ 21-541. Petition to Commission; copy to person affected.

(a) Proceedings for the judicial commitment of a person in the District of Columbia
may be commenced by the filing of a petition with the Commission by his spouse,
parent, or legal guardian, by a physician or a qualified psychologist, by a duly
accredited officer or agent of the Department, by the Director of the Department or
the Director’s designee, or by an officer authorized to make arrests in the District of
Columbia. The petition shall be accompanied by:

       (1) a certificate of a physician or qualified psychologist stating that he has
examined the person and is of the opinion that the person is mentally ill, and because
of the illness is likely to injure himself or other persons if not committed

...


§ 21-542. Hearing by Commission; presence and rights of person affected; hearing
regarding liability.

(a) The Commission shall promptly examine a person alleged to be mentally ill after
the filing of a petition under section 21-541 and shall thereafter promptly hold a
hearing on the issue of his mental illness. The hearing shall be conducted in a manner
consistent with orderly procedure and in a physical setting not likely to have a
harmful effect on the mental health of the person named in such petition. In
conducting the hearing, the Commission shall hear testimony of any person whose
testimony may be relevant and shall receive all relevant evidence which may be
offered. A person with respect to whom a hearing is held under this section may, in
his discretion, be present at the hearing, to testify, and to present and cross-examine
witnesses.

...
                                           63

§ 21-544. Determinations of Commission; report to court; copy to person affected;
right to jury trial.

If the Commission finds, after a hearing under section 21-542, that the person with
respect to whom the hearing was held is not mentally ill or if mentally ill, is not
mentally ill to the extent that he is likely to injure himself or other persons if not
committed, the Commission shall immediately order his release and notify the court
of that fact in writing. If the Commission finds, after the hearing, that the person
with respect to whom the hearing was held is mentally ill, and because of the illness
is likely to injure himself or other persons if not committed, the Commission shall
promptly report that fact, in writing, to the Superior Court of the District of
Columbia. The report shall contain the Commission’s findings of fact, conclusions
of law, and recommendations. A copy of the report of the Commission shall be
served personally on the person with respect to whom the hearing was held and his
attorney. A person with respect to whom the hearing was held with respect to whom
the report is made has the right to demand a jury trial, and the Commission, orally
and in writing, shall advise him of this right.


§ 21-545. Hearing and determination by court or jury; order; witnesses; jurors.

(a) Upon the receipt by the court of a report referred to in section 21-544, the court
shall promptly set the matter for hearing and shall cause a written notice of the time
and place of the final hearing to be served personally upon the person with respect
to whom the report was made and his attorney, together with notice that he has five
days following the date on which he is so served within which to demand a jury trial
or a trial by the Court. The demand may be made by the person or by anyone in his
behalf. If a jury trial or a trial by the Court is demanded within the five-day period,
it shall be accorded by the court with all reasonable speed. If a timely demand for
jury trial or a trial by the Court is not made, the court shall determine the person’s
mental condition on the basis of the report of the Commission, or on such further
evidence in addition to the report as the court requires.

(b) (1) If the Court or jury finds that the person is not mentally ill or is not likely
to injure himself or others as a result of mental illness, the Court shall dismiss the
petition and order the person’s release.

       (2) If the Court or jury finds that the person is mentally ill and, because of that
mental illness, is likely to injure himself or others if not committed, the Court may
order the person’s commitment to the Department or to any other facility, hospital,
                                         64

or mental health provider that the Court believes is the least restrictive alternative
consistent with the best interests of the person and the public. An order of
commitment issued pursuant to this paragraph shall be for a period of one year.

...
                                         65

                                  APPENDIX C:

The Incompetent Defendants Criminal Commitment Act (IDCCA) (excerpts)

§ 24-531.01. Definitions

For the purposes of this chapter, the term:

       (1) “Competence” means that a defendant has sufficient present ability to
consult with his or her lawyer with a reasonable degree of rational understanding
and has a rational, as well as a factual, understanding of the proceedings against him
or her.

      ...

      (5) “Incompetent” means that, as a result of a mental disease or defect, a
defendant does not have sufficient present ability to consult with his or her lawyer
with a reasonable degree of rational understanding or does not have a rational, as
well as a factual, understanding of the proceedings against him or her.

      (6) “Inpatient treatment facility” means:

             (A) Saint Elizabeths Hospital;

            (B) Any other physically secure hospital for the examination or
      treatment of persons with mental illness; or

            (C) Any physically secure or staff-secure facility for the examination,
      treatment, or habilitation of persons with intellectual disabilities.

      ...

      (9) “Treatment” means the services or supports provided to persons with
mental illness or intellectual disabilities, including services or supports that are
offered or ordered to restore a person to competence, to assist a person in becoming
competent, or to ensure that a person will be competent.

      ...
                                           66

§ 24-531.06. Court hearings during and after treatment.

(a) The Court shall hold a prompt hearing, with reasonable notice of such hearing
given to the prosecuting attorney, the defendant, and the defendant’s attorney of
record, and make a new finding as to the defendant’s competence when:

      (1) Any period of treatment ordered under § 24-531.05(b), (c), or (e) is
completed; or [other conditions are met that present the potential termination of the
defendant’s treatment]

...

(c) (1) At the conclusion of a hearing held pursuant to subsection (a) of this
section, the court shall:

             (A) Find that the defendant is competent; or

             (B) Find that the defendant is incompetent and:

                     (i) There is a substantial probability that the defendant will attain
              competence or make substantial progress toward that goal with an
              additional period of time; or

                    (ii) There is no substantial probability that he or she will attain
              competence or make substantial progress toward that goal in the
              foreseeable future.

      ...

      (4) If the court finds the defendant is incompetent pursuant to paragraph
(1)(B)(ii) of this subsection, the court shall either order the release of the defendant
or, where appropriate, enter an order for treatment pursuant to § 24-531.05(a) for up
to 30 days pending the filing of a petition for civil commitment pursuant to
subchapter IV of [the Ervin Act]. The court also may order treatment pursuant to
§ 24-531.07(a)(2) for such period as is necessary for the completion of the civil
commitment proceedings.
                                          67

§ 24-531.07. Extending treatment pending the completion of a civil commitment
proceeding.

(a) Thirty days after the court has ordered extended treatment pursuant to
§ 24-531.06(c)(4), the court shall hold a status hearing to determine whether civil
commitment proceedings have been initiated pursuant to § 21-541 [of subchapter IV
of the Ervin Act] . . . .

       (1) If a petition for civil commitment has not been filed prior to the hearing,
the court shall release the defendant from treatment unless extraordinary cause is
shown for the failure to file the petition, in which case the court may grant an
additional 5 days within which to file a petition.

       (2) If a petition for civil commitment has been filed, the court may either order
that treatment be continued until the entry of a final order in the civil commitment
case or release the defendant from treatment.

...

(c) (1) If the court orders the release of a person in the criminal case or transfer
proceeding who has been committed to an inpatient treatment facility, and a petition
for civil commitment has been filed pursuant to § 21-541 [of subchapter IV of the
Ervin Act], the court shall remand the person to the inpatient treatment facility and
the inpatient treatment facility may detain the person pending a hearing on the [civil
commitment] petition conducted [by the Commission] pursuant to § 21-542.

        (2) Within 7 days of the remand order, a person so detained may request a
probable cause hearing on the person’s continued detention before the Family Court
of the Superior Court of the District of Columbia pursuant to § 21-525 [of subchapter
III of the Ervin Act], in which case a hearing shall be held within 24 hours after the
receipt of the request.

...