decided: October 13, 1992.
TERRANCE FRANK, PETITIONER
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
The petition for a writ of certiorari is denied.
Opinion of JUSTICE STEVENS respecting the denial of the petition for writ of certiorari.
This case illustrates the important difference between an order denying a petition for certiorari and a ruling on the merits.
The Insanity Defense Reform Act of 1984 ensures that a federal criminal defendant found not guilty by reason of insanity will not be released onto the streets. It provides that "the Attorney General shall hospitalize the person [found not guilty by reason of insanity] in a suitable facility" until a State assumes responsibility for his care and treatment or the Attorney General finds that his release would not create a risk of harm to people or property. 18 U.S.C. §
4243(e). The question presented by the petition for certiorari is whether a defendant who has pleaded not guilty by reason of insanity is entitled to a jury instruction explaining the effect of this statute. If such an instruction is not given, there is a strong possibility that the jury will be reluctant to accept a meritorious defense because of fear that a dangerous, mentally-ill person will go free.
For reasons that I explained at some length 18 years ago, refusal to give such an instruction in an appropriate case can constitute plain error.*fn1 Until 1984 the refusal to give such an instruction was justified by the absence of a federal statute providing for mandatory commitment.*fn2 In the District of Columbia, however, where such a statute had been in place since 1955, the instruction was required.*fn3 Now that the reason for a different rule in different parts of the federal system has been eliminated, the wise rule adopted by then-Judge Warren Burger and his colleagues on the District of Columbia Circuit should be applied throughout the system.
Because the denial of a writ of certiorari is not a ruling on the merits, the Court's action today is not inconsistent with that conclusion.*fn4 Rather, the Court's action is supported by the fact that a square conflict between two Courts of Appeals has not arisen since the enactment of the 1984 statute, and by the Court's normal practice of awaiting such a conflict before considering the significance of new federal legislation.