[Congressional Record Volume 142, Number 141 (Thursday, October 3, 1996)]
[Senate]
[Pages S12295-S12296]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       TRANSFER OF PERSONS FOUND NOT GUILTY BY REASON OF INSANITY

  Mr. HATCH. Mr. President, I would like to make several brief comments 
regarding a provision included in the Economic Espionage Act passed 
yesterday. That legislation included an amendment I offered when this 
bill first passed the Senate to permit the transfer of Federal 
defendants found not guilty by reason of insanity from the inadequate 
facility of St. Elizabeths Hospital to the custody of the Attorney 
General.
  Each of the approximately 26 inmates affected by this legislation 
were confined prior to the enactment of the Insanity Defense Reform Act 
of 1984. Since 1984, Federal inmates found not guilty by reason of 
insanity have been turned over to the custody of the Attorney General 
for appropriate treatment. This corrective legislation would extend 
this treatment to the pre-IDRA confinees.
  St. Elizabeths Hospital is in a state of disrepair. According to 
press reports, the 70-year-old heating system is unreliable and can 
leave patients shivering in the cold during the winter months. The 
hospital staff is completely overwhelmed, and shortages of important 
antidepressant medicines have been reported by doctors.
  These conditions should concern us all, and we should seek workable 
long-term solutions. But, we should deal promptly with current 
problems. What is particularly troubling is the lack of security at the 
facility, which is putting the public at risk. There are 26 Federal 
defendants in the hospital that may be a danger to themselves and 
others. Among these inmates is John Hinckley, Jr., who attempted to 
assassinate President Reagan in 1981.
  According to the Department of Justice, there have already been three 
known escapes by these inmates in the

[[Page S12296]]

last 2 years. Fortunately, all of these inmates were recaptured, but 
not before one of them traveled to North Carolina and allegedly 
sexually molested two 3-year-old girls before he was found and returned 
to custody. Sadly, the hospital did not notify the Marshals Service, 
which is responsible for the security of these inmates, of a single 
escape.
  St. Elizabeths Hospital apparently does not have the capability to 
provide adequately for the security or well-being of these 26 Federal 
defendants, even though the Federal Government pays $450 per inmate per 
day, which works out to $164,250 per inmate annually. It is time that 
the Federal Government take responsibility of these individuals for 
their own safety and the safety of the general public.

  This bill transfers these 26 Federal defendants to the custody of the 
Attorney General. This will allow the defendants to be placed in 
appropriate Federal Bureau of Prisons medical facilities, for a 
fraction of the current cost, and to receive care appropriate to their 
conditions. The Justice Department has estimated that by transferring 
even half of the 26 patients to Federal medical facilities that the 
United States would save at least $1.5 million annually.
  The bill also requires that St. Elizabeth's Hospital provide to the 
Department of Justice the medical and treatment records for these 
inmates and bars the hospital from preventing doctors from discussing 
the inmates' treatment with Department of Justice officials. The 
hospital has been withholding the records, making it impossible for the 
Department--which is, after all responsible both for the inmates' well-
being and for paying for their upkeep--to make effective decisions.
  With respect to this records and access provision, I would like to 
briefly mention another related provision of this legislation. At the 
request of Senator Leahy, we have included a provision clarifying the 
effect of the record and access provision on doctor-patient testimonial 
privileges.
  This provision is intended to ensure that this legislation in no way 
alters the current state of the law regarding such testimonial 
privileges. Where these testimonial privileges currently exist, they 
will continue to have effect. Where they do not now apply, this 
legislation does not make them applicable.
  I do not believe that any doctor-patient privilege is applicable to 
the treatment of the patients affected by this legislation. Indeed, it 
would be anomalous if, in a post-adjudication setting, such a privilege 
did exist. It would frustrate the ability of the government to provide 
appropriate care and treatment for these patients entrusted to the 
Government's care as a result of the adjudication.
  Mr. President, this legislation provides for the safety and well-
being of the public and of affected patients in a fiscally responsible 
manner. I am pleased by its adoption by the Congress.
  Mr. President, I ask unanimous consent that a letter from the 
Department of Justice endorsing this legislation be printed in the 
Record following my remarks.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                       U.S. Department of Justice,


                                Office of Legislative Affairs,

                                 Washington, DC, February 7, 1996.
     Hon. Albert Gore,
     President of the Senate,
     U.S. Senate, Washington, DC.
       Dear Mr. President: Enclosed for your review and 
     appropriate reference is a draft bill, entitled the ``Act to 
     Improve the Treatment of and Security for Certain Persons 
     Found Not Guilty by Reason of Insanity in the District of 
     Columbia'' (``Act''). A section by section analysis of the 
     bill is also enclosed.
       This legislation is intended to improve the treatment and 
     security of approximately twenty-six persons who were found 
     not guilty by reason of insanity in the District of Columbia, 
     prior to the enactment of the Insanity Defense Reform Act of 
     1984 (IDRA). At present, these persons are committed to the 
     custody of the District of Columbia's St. Elizabeths 
     Hospital, although the United States remains financially 
     responsible for them.
       The Act would amend 18 U.S.C. Sec. 4243 to establish 
     constitutional procedures--in essence notice and an 
     opportunity for a hearing for each individual person--under 
     which the Attorney General could take custody of these 
     persons. To foreclose constitutional concerns that might 
     arise if the release conditions and procedures pertaining to 
     such persons were changed, the Act makes a series of 
     technical amendments to 18 U.S.C. Sec. 4243 to ensure that 
     these matters would continue to be governed by standards 
     identical to those under the District of Columbia rather than 
     IDRA.
       The enactment of the bill would give the Justice Department 
     the option of leaving this fairly small class of persons in 
     St. Elizabeths, contracting with a state or private facility 
     for their treatment in a secure setting, or placing them in a 
     Bureau of Prisons medical facility. The Department would not 
     have to handle all the persons the same way, but could pick 
     and choose the best course of treatment for them 
     individually, keeping in mind required security and public 
     safety concerns.
       The benefits of this legislation are threefold. First, the 
     transfer of custody may allow for an improvement of medical 
     and mental health care and treatment over that which is 
     presently available at St. Elizabeths Hospital. Second, some 
     patients have escaped from St. Elizabeths and engaged in 
     criminal activity. These patients should be placed in more 
     secure facilities. Third, the United States is presently 
     incurring medical bills of $450.00 per day for each of these 
     inmates. Transfer of custody to a Federal medical facility 
     would result in savings per patient of nearly $120,000.00 per 
     year. Even if only half of these patients were transferred to 
     such a facility, the United States would realize annual 
     savings of at least $1.5 million.
       The Act would require the District of Columbia and St. 
     Elizabeths Hospital to provide the Attorney General access, 
     within prescribed time limits, to medical records pertaining 
     to the persons whose custody could be transferred to the 
     Attorney General. This portion of the bill would resolve a 
     pending suit the Department of Justice has brought against 
     the District of Columbia over these records. The District has 
     refused the Department access to these records, despite the 
     fact that the United States is financially responsible for 
     the care and treatment of the persons to whom the records 
     pertain at an annual cost of more than $4 million. Access to 
     these records, interviews with mental health professionals 
     who have examined the persons to whom they pertain, and 
     access to the patients themselves, are all important in 
     enabling the Department of Justice to properly evaluate the 
     condition of these patients before any transfer would be 
     effected. The Act would prohibit the District of Columbia 
     from preventing persons in its employ from providing such 
     information to the Department of Justice or a contractor 
     hired for this purpose, and would permit an interview with 
     any patient who voluntarily consented to be interviewed.
       The Office of Management and Budget advises that there is 
     no objection from the standpoint of the Administration's 
     program to the submission of this proposal to Congress.
       I hope the bill will be promptly introduced, referred to 
     the appropriate committee for consideration and enacted.
           Sincerely,
                                                      Andrew Fois,
     Assistant Attorney General.

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