Does automatic confinement for competency restoration, without an individualized determination of whether confinement is necessary, violate due-process

QUESTIONS PRESENTED Freedom from confinement before or without trial is a fundamental right. United States v. Salerno, 481 U.S. 739, 750 (1987). Under this Court’s precedents, the government cannot infringe upon a fundamental right unless the infringement is narrowly tailored to serve a compelling government interest. Under 18 U.S.C. § 4241(d), the district court—upon finding that a defendant lacks the mental competency to proceed to trial—“shall commit the defendant to the custody of the Attorney General,” who in turn “shall hospitalize the defendant in a suitable facility” for evaluation and treatment “for such a reasonable period of time, not to exceed four months, as is necessary to determine whether there is a substantial probability” that he can attain competency in the foreseeable future. The period of hospitalization may then be extended for “an additional reasonable period of time” until he attains competency, if the court makes certain findings. Inpatient confinement is not always necessary to achieve the government’s interests in competency restoration. In recent years, outpatient programs have been successfully implemented in many states, including Arizona. Nevertheless, under current federal practice, many nondangerous intellectually disabled defendants, who were released under the Bail Reform Act but later found incompetent to stand trial, are automatically and unnecessarily incarcerated for competency restoration. Federal courts of appeal have sanctioned this practice as complying with due process, but they did so either before outpatient programming became widely available or without confronting the impact of that development. The Georgia Supreme Court, however, recently rejected the analysis of these federal courts and held that automatic incarceration for competency restoration violates due process. Current federal practice also violates American Bar Association standards. The questions presented are: (1) Does automatic confinement for competency restoration, without an individualized determination of whether confinement is necessary, violate due process? (2) When confinement is unnecessary to achieve the government’s interests in competency restoration, does it violate the Eighth Amendment? (3) Is the federal competency statute amenable to a construction that requires a district court’s finding of necessity before a defendant released under the Bail Reform Act may be confined before trial for competency restoration? i PARTIES AND PROCEEDINGS All