Squire Patton Boggs Summer Associate Taylor Lonas summarizes a recent opinion from the United States Court of Appeals for the Sixth Circuit holding that an insanity acquittee bears the burden of proof for showing, after violating the terms of his release, that his continued release would not “create a substantial risk” to the public.  18 U.S.C. § 4243(g). 

By Squire Patton Boggs

After a defendant is found not guilty of a crime by reason of insanity, the court may commit the defendant to civil institutional care until the defendant’s mental health has improved.  18 U.S.C. § 4243(a). When the defendant is ready to be released back into the world, his release often includes conditions. These conditions might include a requirement to take certain medication or to not contact certain individuals. 

If the defendant violates his conditions and the court holds a hearing to decide whether it should revoke the defendant’s release, a question arises:  who should bear the burden of proof to show that the defendant’s continued release would not “create a substantial risk” to the public—the defendant or the government? 18 U.S.C. § 4243(g). The Sixth Circuit recently answered that the defendant should bear the burden.  United States v. Williams, No. 22-5002, at *3 (6th Cir. Jun 12, 2023).   

Chief Judge Sutton’s opinion for the Court relied on the language, history, and structure of 18 U.S.C. § 4243(g)’s civil-commitment framework to reject Williams’ argument that the burden of proof should fall on the government. While the plain language of the statute does not expressly answer the question, the court noted that the default rule for affirmative defenses, the presumption of the Insanity Defense Reform Act, and the statute’s commitment procedure all have one thing in common—each places the burden of proof on the defendant.

The court rebuffed Williams’s argument that textual silence on the precise issue meant that Congress intended to flip the burden on the government.  In the court’s view, the import of silence often turns on “background presumptions” and “context,” neither of which favored Williams. 

Here, the background presumption was Congress’s “clear legislative judgment” that an insanity acquittee poses a danger.  And the relevant context is that the defendant bears the burden for the insanity defense at trial, and the defendant continues to bear the burden in seeking initial release, modifying conditions, etc.  All of that was consistent with the “long-established common-law rule” that individuals bear the burden on affirmative defenses.  That ancient rule, combined with the presumptions and context at play, unambiguously demonstrated that the defendant bore the burden for demonstrating that his continued release would not “create a substantial risk” to the public.  18 U.S.C. § 4243(g).”