Wednesday, 29 March 2017

Chapter 4: Unsolicited Discovery Produces ORIGINAL Documents and X-rays Which Prove My SSA Disability Claim

Thomas Lowell Ketchum, Jr.

3:51 PM (3 minutes ago)
to |FBUFrancescoFBUacsbucharestBryanKarenSheliaJudge_AycockJudge_MillsjmillsJohn

Someone from the State Department sent to me my ORIGINAL x-rays and other medical reports which should have been physically included in " the package" which was to support my SSA Disability application.

My requests for information were for copies, since I fully expected that the ORIGINALS resided within already submitted application "packages". 

Try to imagine my surprise when I opened the envelope and got these items.

Since I have the originals as opposed to certified copies then I must assume that this information WAS NOT considered in either the original application, or the request for reconsideration which was timely filed by me when the first application was denied during 2016.

Furthermore, the orthopedic report clearly states that I should be "carefully evaluated" for a "total shoulder replacement" (item #5, under "recommendations").

Finally, the psychiatric report, while mischaracterizing my conduct during the interview, REACHES EXACTLY THE SAME CONCLUSION as the report relied upon by U.S. District Court Judge Michael P. Mills, when he found me to be "suffering from a mental disease or defect", within the meaning of both the DSM 4 (as related by mental health professionals at the Department of Justice) and the relevant federal statutes on mental health evaluation to determine competence to stand trial. In the case of Judge Mills and his findings with respect to me, I was found "incompetent", which has legal consequences, including, but not limited to, the complete inability to do any job.

As these reports find me both physically and mentally disabled, within the meaning of the law, I cannot help but believe that, had they been actually included and considered fairly, along with the x-rays, then I would already have been awarded full social security disability benefits, all the way back to 2012.

I submit that the SSA should take the time to actually read the reports and to look at the x-rays this time and then take the steps needed to correct their mistakes and oversight with respect to my case.

If you need a copy of any of these, I will make them and have them sent to you.

If they do not immediately wish to do this, then I respectfully add the following names to my witness list for any Administrative Hearing of this matter:

Tiberiu Dobranici, M.D. Internal Medicine
Dr, Liiu Andrian, M.D. Orthopedic/Trauma Specialist
Radu Florescu, M.D. Psychiatrist

Each of these individuals is available through the Bio-Medica Medical Center Floreasca, Calea Floreasca, Nr. 111-113, Sector 1, Bucharest, Code Postal: 014455, phone: 4021-311-7793 or 4021-311-7796  The email is  as follows:

Please advise as to whether or not any action is required on my part and whether or not I may expect a finding of disability, in advance of any hearing of this matter as a way of resolving this case in a more timely and less expensive fashion for all concerned.

Thanking each of you, in advance, for your cooperation and assistance in these matters, I remain,


Thomas Lowell Ketchum, Jr.

Wednesday, 22 March 2017

Chapter 3 Continued: The Package Moves..

|FBU Naples

10:46 AM (4 hours ago)
to me
Dear Mr. Ketchum,

Thank you so much for your email.  Really appreciate the kind words.  It was also a pleasure for me talking with you.  I hope that this time some positive action(s) will be achieved. J

Tom, I have just mailed you – since there is too many personal information on the form – the Report of Contact included in the package I sent to Baltimore yesterday.  Please allow at least of couple of weeks for the mail to reach you since we are talking about the exchange of mail from two European countries (Italy and Romania).

Yesterday, I also sent you the proof letter that you had requested the hearing and that all the information had been submitted to Baltimore.

As always, wish all the best and hope that eventually your case will be resolved successfully.

In the meantime, wish you and your family all the best.

John Deaguiar
Claims Representative
Social Security Administration
Federal Benefits Unit (FBU)
U.S. Consulate General, Naples, Italy
Telephone: 011-39-0815838111 (option 4)
Fax: 011-39-0817611804

Thomas Lowell Ketchum, Jr.

7:07 PM (11 hours ago)
to |FBUFrancescoFBUSheliaacsbucharestKarenBryanjmillsJudge_MillsJudge_AycockJohn
Dear Mr. Deaguiar,

This will serve to acknowledge and thank you for your email and best wishes.

As I recall our conversation, you stated something to the effect that you would be required to write a report of some sort, which you implied would accompany the information you say was sent to Baltimore. Regarding this, I would respectfully request a copy of whatever work product you created and/or included in the file you say you forwarded to Baltimore. I ask so that I can be sure we are all singing off the same page of music here, so to speak. 

You will note that I have requested that both you and your boss be copied with my medical information, as you requested. It is in that same spirit that I ask for the information you included which may include, but not be limited to, characterizations of our conversations and other exchanges.

I need to also know, with specificity, whether or not you included my witness list and the email wherein I stated my concerns over inability to travel and my desire to fully participate in the hearing process, should it come down to that. I would add here that, if the hearing cannot fully come to me, then I am requesting to be fully brought to the hearing, wherever it may be. Again, I am having a hard time understanding how I will be able to confront witnesses and examine documents in real time and together with the ALJ without us all being physically in the same place at the same time. However, I must stress that I INSIST on EXERCISING my rights, one way or another, even if it is Pro Se.

The ONLY way I see out of this is to have a legitimate lawyer take my case, on a contingency basis like is the common practice in the States. The problem, as I have explained before, is that I cannot find anyone who will take the case. Accordingly, I am left with the Pro Se option.

Please provide me with a copy of whatever you sent regarding my case and let me know if you know anyone who can take my case for a contingency fee.


Thomas Lowell Ketchum, Jr.

On Tue, Mar 21, 2017 at 10:32 AM, |FBU Naples <> wrote:
Dear Mr. Ketchum,

It was a pleasure talking with you on March 16th in order to complete your request for a Hearing by an Administrative Law Judge.  Thank you also for the email and the documents requested.

I am sorry I did not write back sooner but I was out and only I returned to work yesterday.  I have completed all the necessary actions requested for the Hearing and I have transferred it to our Headquarters in Baltimore for their next step.

Please look forward to correspondence from our Headquarters to inform you about the date of the Hearing.  Most likely we will not hear from our colleagues in Baltimore, rather, SSA will contact you by correspondence.

Again, it was a pleasure talking with you.  Wish you all the best.  Please feel free to contact us if there are any other issues related to your disability hearing.

Best regards,

John Deaguiar
Claims Representative
Social Security Administration
Federal Benefits Unit (FBU)
U.S. Consulate General, Naples, Italy
Telephone: 011-39-0815838111 (option 4)
Fax: 011-39-0817611804
Please do not forward this email to a third party as it may contain PII
NOTE: Electronic mail is not secure.  We will only send you general information via email

Thank you for your inquiry.  You can apply for Social Security retirement, spouse, Medicare only or disability on the internet at  It is secure, fast and easy.  Once you submit the application online, print the receipt, and wait.  We will contact you in about 6-8 weeks to review your claim and to request needed documents.
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Thursday, 16 March 2017

Chapter 3: Social Security Wants Me To Wave My Right To Appear...Not In This Life!

Thomas Lowell Ketchum, Jr.

Attachments3:03 PM (3 hours ago)
to |FBUFrancescoFBUSheliaacsbucharestKarenBryanjmillsJudge_MillsJudge_AycockJohn
To All Interested Parties and Whomever Else This May Concern,

I have executed and attached a completed SSA form 3288 in pdf, wherein I have requested copies of my medical and related records in this case be made available both to John, Francesco and to myself, as the form indicates.

As per our other aspects of today's conversation, this will confirm that I DECLINED to sign a form 4608 "Waiver of Right to personal appearance" form. I further declare for the record, that I WILL NEVER SIGN ANY FORM 4608, OR OTHERWISE WAIVE ANY RIGHTS I MAY HAVE UNDER THE LAW, absent the full and satisfactory resolution of all claims I have made in this matter..

For the record, I RESERVE ALL MY RIGHTS, INCLUDING THE RIGHT TO APPEAR, even if it is by either video or telephonic conference, at the hearing of this matter, which I understand is to be scheduled at some future time.

I understand that any hearing will be before an Administrative Law Judge, who, I was told today, will be located somewhere in the United States.

For the record, I have many items to get into the record and I wish to confront, cross-examine and otherwise interview those who may appear at any hearing in this matter.

I also have documents to examine on the date of the hearing and I plan to exercise my right to challenge the authenticity of any records or other documents introduced at the hearing or relied upon later, which may form the basis for any decision of the ALJ.

All the above being said, I have a very limited income as I am disabled and certainly have no way to afford travel to the United States in order to physically appear at any hearing as this process was described to me today by the gentleman in Naples.

Accordingly, I respectfully request that the ALJ find another, equitable way to accommodate my desire to participate in the hearing and to otherwise preserve my rights under the law.

Finally, regardless of how the ALJ may handle my requests above, I also request to be provided with a new orthopedic examination, by a DIFFERENT orthopedic specialist, and to be personally provided with copies of any and all reports, including x-rays, that may be produced therefrom.

Unless I hear otherwise and to the contrary, I will expect these things to happen in the near future.

Sincerely and Respectfully,

Thomas Lowell Ketchum, Jr.
Buzau, Romania

This is why Judge Mills owes me for his deprivation of my civil rights from 03 August 2012-12 December 2012

Thomas Lowell Ketchum, Jr.

7:49 AM (0 minutes ago)
to Judge_BiggersJudge_MillsJudge_AycockjmillsJohnSallie_Wilkers.
Knowing what the law was, as "Chief Judge" for the U.S. District Court for the Northern District of Mississippi, Judge Michael P. Mills kept me in jail for 4 months, in violation of Supreme Court case law.

I am owed compensation for said deprivation, just like I was owed a plane ticket back to my "place of arrest/home of record" (Romania). If he cannot bring himself to fix THAT, then maybe he can clean-up the mess he made in my name.

You CANNOT say I have a "mental disease or defect" and then NOT have me "mentally disabled" in front of SSA. One or the other. I'll live either way. 
By the way, I have 2 bad shoulders that show up clearly on orthopedic examination and x-rays. I am disabled, physically, but, since everyone is trying to pretend that nothing is wrong with me, I am forced to seek my"day in Court".

My thinking is that you people have the power to make all this go away and make everyone a little more happy in the process. If you can do so, then I think it's time to fix this with the stroke of a pen and/or a well-timed phone call. Time, however, is in short supply.

This is NOT over until or unless you make this right..Next step, Administrative Law Judge Hearing in front of SSA, 2 steps after that, we are back in Mississippi Federal District Court (and in front of the Public), AFTER THAT, as far as it has to go..Maybe your colleagues down in New Orleans will enjoy reading about all this, AGAIN, after the last time I had to fax them about Judge Mills keeping me in jail, unconstitutionally.

Submitted for your approval..Enjoy:

406 U.S. 715 (92 S.Ct. 1845, 32 L.Ed.2d 435)
Theon JACKSON, Petitioner, v. State of INDIANA.
No. 70—5009.
Argued: Nov. 18, 1971.
Decided: June 7, 1972.
The Indiana procedure for pretrial commitment of incompetent criminal defendants set forth in Ind.Ann.Stat. § 9—1706a provides that a trial judge with 'reasonable ground' to believe the defendant to be incompetent to stand trial must appoint two examining physicians and schedule a competency hearing, at which the defendant may introduce evidence. If the court, on the basis of the physicians' report and 'other evidence,' finds that the defendant lacks 'comprehension sufficient to understand the proceedings and make his defense,' the trial is delayed and the defendant is remanded to the state department of mental health for commitment to an 'appropriate psychiatric institution' until defendant shall become 'sane.' Other statutory provisions apply to commitment of citizens who are 'feeble-minded, and are therefore unable properly to care for themselves.' The procedures for committing such persons are substantially similar to those for determining a criminal defendant's pretrial competency, but a person committed as 'feeble-minded' may be released 'at any time' his condition warrants it in the judgment of the superintendent of the institution. Indians also has a comprehensive commitment scheme for the 'mentally ill, i.e., those with a 'psychiatric disorder' as defined by the statute, who can be committed on a showing of mental illness and need for 'care, treatment, training or detention.' A person so committed may be released when the superintendent of the institution shall discharge him, or when he is cured.
Petitioner in this case, a mentally defective deaf mute, who cannot read, write, or virtually otherwise communicate, was charged with two criminal offenses and committed under the § 9 1706a procedure. The doctors' report showed that petitioner's condition precluded his understanding the nature of the charges against him or participating in his defense and their testimony showed that the prognosis was 'rather dim'; that even if petitioner were not a deaf must he would be incompetent to stand trial; and that petitioner's intelligence was not sufficient to enable him ever to develop the necessary communication skills. According to a deaf-school interpreter's testimony, the State had no facilities that could help petitioner learn minimal communication skills. After finding that petitioner 'lack(ed) comprehension sufficient to make his defense,' the court ordered petitioner committed until such time as the health department could certify petitioner's sanity to the court. Petitioner's counsel filed a motion for a new trial, which was denied. The State Supreme Court affirmed. Contending that his commitment was tantamount to a 'life sentence' without his having been convicted of a crime, petitioner claims that commitment under § 9—1706a deprived him of equal protection because, absent the criminal charges against him, the State would have had to proceed under the other statutory procedures for the feeble-minded or those for the mentally ill, under either of which petitioner would have been entitled to substantially greater rights. Petitioner also asserts that indefinite commitment under the section deprived him of due process and subjected him to cruel and unusual punishment. Held:
1. By subjecting petitioner to a more lenient commitment standard and to a more stringent standard of release than those generally applicable to all other persons not charged with offenses, thus condemning petitioner to permanent institutionalization without the showing required for commitment or the opportunity for release afforded by ordinary civil commitment procedures, Indiana deprived petitioner of equal protection. Cf. Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620. Pp. 723—731.
2. Indiana's indefinite commitment of a criminal defendant solely on account of his lack of capacity to stand trial violates due process. Such a defendant cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain competency in the foreseeable future. If it is determined that he will not, the State must either institute civil proceedings applicable to indefinite commitment of those not charged with crime, or release the defendant. Greenwood v. United States, 350 U.S. 366, 76 S.Ct. 410, 100 L.Ed. 412 distinguished. Pp. 739—741.
3. Since the issue of petitioner's criminal responsibility at the time of the alleged offenses (as distinguished from the issue of his competency to stand trial) has not been determined and other matters of defense may remain to be resolved, it would be premature for this Court to dismiss the charges against petitioner. Pp. 739—741.
253 Ind. 487, 255 N.E.2d 515, reversed and remanded.
Frank E. Spencer, Indianapolis, Ind., for petitioner.
Sheldon A. Breskow, Indianapolis, Ind., for respondent.

Mr. Justice BLACKMUN delivered the opinion of the Court.
We are here concerned with the constitutionality of certain aspects of Indiana's system for pretrial commitment of one accused of crime.
Petitioner, Theon Jackson, is a mentally defective deaf mute with a mental level of a pre-school child. He cannot read, write, or otherwise communicate except through limited sign language. In May 1968, at age 27, he was charged in the Criminal Court of Marion County, Indiana, with separate robberies of two women. The offenses were alleged to have occurred the preceding July. The first involved property (a purse and its contents) of the value of four dollars. The second concerned five dollars in money. The record sheds no light on these charges since, upon receipt of notguilty pleas from Jackson, the trial court set in motion the Indiana procedures for determining his competency to stand trial. Ind.Ann.Stat. § 9—1706a (Supp. 1971), 1 now Ind.Code 35—5—3—2 (1971).
As the statute requires, the court appointed two psychiatrists to examine Jackson. A competency hearing was subsequently held at which petitioner was represented by counsel. The court received the examining doctors' joint written report and oral testimony from them and from a deaf-school interpreter through whom they had attempted to communicate with petitioner. The report concluded that Jackson's almost non-existent communication skill, together with his lack of hearing and his mental deficiency, left him unable to understand the nature of the charges against him or to participate in his defense. One doctor testified that it was extremely unlikely that petitioner could ever learn to read or write and questioned whether petitioner even had the ability to develop any proficiency in sign language. He believed that the interpreter had not been able to communicate with petitioner to any great extent and testified that petitioner's 'prognosis appears rather dim.' The other doctor testified that even if Jackson were not a deaf mute, he would be incompetent to stand trial, and doubted whether petitioner had sufficient intelligence ever to develop the necessary communication skills. The interpreter testified that Indiana had no facilities that could help someone as badly off as Jackson to learn minimal communication skills.
On this evidence, the trial court found that Jackson 'lack(ed) comprehension sufficient to make his defense,' § 9 1706a, and ordered him committed to the Indiana Department of Mental Health until such time as that Department should certify to the court that 'the defendant is sane.'
Petitioner's counsel then filed a motion for a new trial, contending that there was no evidence that Jackson was 'insane,' or that he would ever attain a status which the court might regard as 'sane' in the sense of competency to stand trial. Counsel argued that Jackson's commitment under these circumstances amounted to a 'life sentence' without his ever having been convicted of a crime, and that the commitment therefore deprived Jackson of his Fourteenth Amendment rights to due process and equal protection, and constituted cruel and unusual punishment under the Eighth Amendment made applicable to the States through the Fourteenth. The trial court denied the motion. On appeal the Supreme Court of Indiana affirmed, with one judge dissenting, 253 Ind. 487, 255 N.E.2d 515 (1970). Rehearing was denied with two judges dissenting. We granted certiorari, 401 U.S. 973, 91 S.Ct. 1203, 28 L.Ed.2d 322 (1971).
For the reasons set forth below, we conclude that, on the record before us, Indiana cannot constitutionally commit the petitioner for an indefinite period simply on account of his incompetency to stand trial on the charges filed against him. Accordingly, we reverse.
Section 9—1706a contains both the procedural and substantive requirements for pretrial commitment of incompetent criminal defendants in Indiana. If at any time before submission of the case to the court or jury the trial judge has 'reasonable ground' to believe the defendant 'to be insane,' 2 he must appoint two examining physicians and schedule a competency hearing. The hearing is to the court alone, without a jury. The examining physicians' testimony and 'other evidence' may be adduced on the issue of incompetency. If the court finds the defendant 'has not comprehension sufficient to understand the proceedings and make his defense,' trial is delayed or continued and the defendant is remanded to the state department of mental health to be confined in an 'appropriate psychiatric institution.' The section further provides that '(w)henever the defendant shall become sane' the superintendent of the institution shall certify that fact to the court, and the court shall order him brought on to trial. The court may also make such an order sua sponte. There is no statutory provision for periodic review of the defendant's condition by either the court or mental health authorities. Section 9—1706a by its terms does not accord the defendant any right to counsel at the competency hearing or otherwise describe the nature of the hearing; but Jackson was represented by counsel who cross-examined the testifying doctors carefully and called witnesses on behalf of the petitioner-defendant.
Petitioner's central contention is that the State, in seeking in effect to commit him to a mental institution indefinitely, should have been required to invoke the standards and procedures of Ind.Ann.Stat. § 22—1907, now Ind.Code 16—15—1—3 (1971), governing commitment of 'feeble-minded' persons. That section provides that upon application of a 'reputable citizen of the county' and accompanying certificate of a reputable physician that a person is 'feeble-minded and is not insane or epileptic' (emphasis supplied), a circuit court judge shall appoint two physicians to examine such person. After notice, a hearing is held at which the patient is entitled to be represented by counsel. If the judge determines that the individual is indeed 'feeble-minded,' he enters an order of commitment and directs the clerk of the court to apply for the person's admission 'to the superintendent of the institution for feebleminded persons located in the district in which said county is situated.' A person committed under this section may be released 'at any time,' provided that 'in the judgment of the superintendent, the mental and physical condition of the patient justifies it.' § 22—1814, now Ind.Code 16—15—4—12 (1971). The statutes do not define either 'feeble-mindedness' or 'insanity' as used in § 22—1907. But a statute establishing a special institution for care of such persons, § 22—1801, IC 1971, 16—15—4—1, refers to the duty of the State to provide care for its citizens who are 'feeble-minded, and are therefore unable properly to care for themselves.' 3 These provisions evidently afford the State a vehicle for commitment of persons in need of custodial care who are 'not insane' and therefore do not qualify as 'mentally ill' under the State's general involuntary civil commitment scheme. See §§ 22 1201 to 22—1256, now Ind.Code 16—14—9—1 to 16—14—9—31, 16—13—2—9 to 16—13—2—10, 35—5—3—4, 16—14—14—1 to 16—14—14—19, and 16—14—15 5, 16—14—15—1, and 16—14—19—1 (1971).
Scant attention was paid this general civil commitment law by the Indiana courts in the present case. An understanding of it, however, is essential to a full airing of the equal protection claims raised by petitioner. Section 22—1201(1) defines a 'mentally ill person' as one who
'is afflicted with a psychiatric disorder which substantially impairs his mental health; and, because of such psychiatric disorder, requires care, treatment, training or detention in the interest of the welfare of such person or the welfare of others of the community in which such person resides.'
Section 22—1201(2) defines a 'psychiatric disorder' to be any mental illness or disease, including any mental deficiency, epilepsy, alcoholism, or drug addiction. Other sections specify procedures for involuntary commitment of 'mentally ill' persons that are substantially similar to those for commitment of the feeble-minded. For example, a citizen's sworn statement and the statement of a physician are required. § 22—1212. The circuit court judge, the applicant, and the physician then consult to formulate a treatment plan. § 22—1213. Notice to the individual is required, § 22—1216, and he is examined by two physicians, § 22 1215. There are provisions for temporary commitment. A hearing is held before a judge on the issue of mental illness. §§ 22—1209, 22 1216, 22—1217. The individual has a right of appeal. § 22—1210. An individual adjudged mentally ill under these sections is remanded to the department of mental health for assignment to an appropriate institution. § 22—1209. Discharge is in the discretion of the superintendent of the particular institution to which the person is assigned, § 22—1223; Official Opinion No. 54, Opinions of the Attorney General of Indiana, Dec. 30, 1966. The individual, however, remains within the court's custody, and release can therefore be revoked upon a hearing. Ibid.
Because the evidence established little likelihood of improvement in petitioner's condition, he argues that commitment under § 9—1706a in his case amounted to a commitment for life. This deprived him of equal protection, he contends, because, absent the criminal charges pending against him, the State would have had to proceed under other statutes generally applicable to all other citizens: either the commitment procedures for feeble-minded persons, or those for mentally ill persons. He argues that under these other statutes (1) the decision whether to commit would have been made according to a different standard, (2) if commitment were warranted, applicable standards for release would have been more lenient, (3) if committed under § 22—1907, he could have been assigned to a special institution affording appropriate care, and (4) he would then have been entitled to certain privileges not now available to him.
In Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966), the Court held that a state prisoner civilly committed at the end of his prison sentence on the finding of a surrogate was denied equal protection when he was deprived of a jury trial that the State made generally available to all other persons civilly committed. Rejecting the State's argument that Baxtrom's conviction and sentence constituted adequate justification for the difference in procedures, the Court said that 'there is no conceivable basis for distinguishing the commitment of a person who is nearing the end of a penal term from all other civil commitments.' 383 U.S., at 111—112, 86 S.Ct., at 763; see United States ex rel. Schuster v. Herold, 410 F.2d 1071 (CA2), cert. denied, 396 U.S. 847, 90 S.Ct. 81, 24 L.Ed.2d 96 (1969). The Court also held that Baxstrom was denied equal protection by commitment to an institution maintained by the state corrections department for 'dangerously mentally ill' persons, without a judicial determination of his 'dangerous propensities' afforded all others so committed.
If criminal conviction and imposition of sentence are insufficient to justify less procedural and substantive protection against indefinite commitment than that generally available to all others, the mere filing of criminal charges surely cannot suffice. This was the precise holding of the Massachusetts Court in Commonwealth v. Druken, 356 Mass. 503, 507, 254 N.E.2d 779, 781 (1969). 4 The Baxstrom principle also has been extended to commitment following an insanity acquittal, Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642 (1968); Cameron v. Mullen, 128 U.S.App.D.C. 235, 387 F.2d 193 (1967); People v. Lally, 19 N.Y.2d 27, 277 N.Y.S.2d 654, 224 N.E.2d 87 (1966), and to commitment in lieu of sentence following conviction as a sex offender. Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972).
Respondent argues, however, that because the record fails to establish affirmatively that Jackson will never improve, his commitment 'until sane' is not really an indeterminate one. It is only temporary, pending possible change in his condition. Thus, presumably, it cannot be judged against commitments under other state statutes that are truly indeterminate. The State relies on the lack of 'exactitude' with which psychiatry can predict the future course of mental illness, and on the Court's decision in what is claimed to be 'a fact situation similar to the case at hand' in Greenwood v. United States, 350 U.S. 366, 76 S.Ct. 410, 100 L.Ed. 412 (1956).
Were the State's factual premise that Jackson's commitment is only temporary a valid one, this might well be a different case. But the record does not support that premise. One of the doctors testified that in his view Jackson would be unable to acquire the substantially improved communication skills that would be necessary for him to participate in any defense. The prognosis for petitioner's developing such skills, he testified, appeared 'rather dim.' In answer to a question whether Jackson would ever be able to comprehend the charges or participate in his defense, even after commitment and treatment, the doctor said, 'I doubt it, I don't believe so.' The other psychiatrist testified that even if Jackson were able to develop such skills, he would still be unable to comprehend the proceedings or aid counsel due to his mental deficiency. The interpreter, a supervising teacher at the state school for the deaf, said that he would not be able to serve as an interpreter for Jackson or aid him in participating in a trial, and that the State had no facilities that could, 'after a length of time,' aid Jackson in so participating. The court also heard petitioner's mother testify that Jackson already had undergone rudimentary out-patient training communications skills from the deaf and dumb School in Indianapolis over a period of three years without noticeable success. There is nothing in the record that even points to any possibility that Jackson's present condition can be remedied at any future time.
Nor does Greenwood, 5 which concerned the constitutional validity of 18 U.S.C. 4244 to 4248, lend support to respondent's position. That decision, addressing the 'narrow constitutional issue raised by the order of commitment in the circumstances of this case,' 350 U.S., at 375, 76 S.Ct., at 415, upheld the Federal Government's constitutional authority to commit an individual found by the District Court to be 'insane,' incompetent to stand trial on outstanding criminal charges, and probably dangerous to the safety of the officers, property, or other interests of the United States. The Greenwood Court construed the federal statutes to deal 'comprehensively' with defendants 'who are insane or mentally incompetent to stand trial,' and not merely with 'the problem of temporary mental disorder.' 350 U.S., at 373, 76 S.Ct., at 414. Though Greenwood's prospects for improvement were slim, the Court held that 'in the situation before us,' where the District Court had made an explicit finding of dangerousness, that fact alone 'does not defeat federal power to make this initial commitment.' 350 U.S., at 375, 76 S.Ct., at 415. No issue of equal protection was raised or decided. See Petitioner's Brief, No. 460, O.T.1955, pp. 2, 7—9. It is clear that the Government's substantive power to commit on the particular findings made in that case was the sole question there decided. 350 U.S., at 376, 76 S.Ct., at 415.
We note also that neither the Indiana statute nor state practice makes the likelihood of the defendant's improvement a relevant factor. The State did not seek to make any such showing, and the record clearly establishes that the chances of Jackson's ever meeting the competency standards of § 9—1706a are at best minimal, if not nonexistent. The record also rebuts any contention that the commitment could contribute to Jackson's improvement. Jackson's § 9—1706a commitment is permanent in practical effect.
We therefore must turn to the question whether, because of the pendency of the criminal charges that triggered the State's invocation of § 9—1706a, Jackson was deprived of substantial rights to which he would have been entitled under either of the other two state commitment statutes. Baxstrom held that the State cannot withhold from a few the procedural protections or the substantive requirements for commitment that are available to all others. In this case commitment procedures under all three statutes appear substantially similar: notice, examination by two doctors, and a full judicial hearing at which the individual is represented by counsel and can cross-examine witnesses and introduce evidence. Under each of the three statutes, the commitment determination is made by the court alone, and appellate review is available.
In contrast, however, what the State must show to commit a defendant under § 9—1706a, and the circumstances under which an individual so committed may be released, are substantially different from the standards under the other two statutes.
Under § 9—1706a, the State needed to show only Jackson's inability to stand trial. We are unable to say that, on the record before us, Indiana could have civilly committed him as mentally ill under § 22—1209 or committed him as feeble-minded under § 22 1907. The former requires at least (1) a showing of mental illness and (2) a showing that the individual is in need of 'care, treatment, training or detention.' § 22—1201(1). Whether Jackson's mental deficiency would meet the first test is unclear; neither examining physician addressed himself to this. Furthermore, it is problematical whether commitment for 'treatment' or 'training' would be appropriate since the record establishes that none is available for Jackson's condition at any state institution. The record also fails to establish that Jackson is in need of custodial care or 'detention.' He has been employed at times, and there is no evidence that the care he long received at home has become inadequate. The statute appears to require an independent showing of dangerousness ('requires . . . detention in the interest of the welfare of such person or . . . others . . .'). Insofar as it may require such a showing, the pending criminal charges are insufficient to establish it, and no other supporting evidence was introduced. For the same reasons, we cannot say that this record would support a feeble-mindedness commitment under § 22—1907 on the ground that Jackon is 'unable properly to care for (himself).' 6 § 22—1801.
More important, an individual committed as feeble-minded is eligible for release when his condition 'justifies it,' § 22—1814, and an individual civilly committed as mentally ill when the 'superintendent or administrator shall discharge such person or (when) cured of such illness.' § 22—1223 (emphasis supplied). Thus, in either case release is appropriate when the individual no longer requires the custodial care or treatment or detention that occasioned the commitment, or when the department of mental health believes release would be in his best interests. The evidence available concerning Jackson's past employment and home care strongly suggests that under these standards he might be eligible for release at almost any time, even if he did not improve. 7 On the other hand, by the terms of his present § 9—1706a commitment, he will not be entitled to release at all, absent an unlikely substantial change for the better in his condition. 8
Baxstrom did not deal with the standard for release, but its rationale is applicable here. The harm to the individual is just as great if the State, without reasonable justification, can apply standards making his commitment a permanent one when standards generally applicable to all others afford him a substantial opportunity for early release.
As we noted above, we cannot conclude that pending criminal charges provide a greater justification for different treatment than conviction and sentence. Consequently, we hold that by subjecting Jackson to a more lenient commitment standard and to a more stringent standard of release than those generally applicable to all others not charged with offenses, and by thus condemning him in effect to permanent institutionalization without the showing required for commitment or the opportunity for release afforded by § 22—1209 or § 22—1907, Indiana deprived petitioner of equal protection of the laws under the Fourteenth Amendment. 9
For reasons closely related to those discussed in Part II above, we also hold that Indiana's indefinite commitment of a criminal defendant solely on account of his incompetency to stand trial does not square with the Fourteenth Amendment's guarantee of due process.
A. The Federal System. In the federal criminal system, the constitutional issue posed here has not been encountered precisely because the federal statutes have been construed to require that a mentally incompetent defendant must also be found 'dangerous' before he can be committed indefinitely. But the decisions have uniformly articulated the constitutional problems compelling this statutory interpretation.
The federal statute, 18 U.S.C. 4244 to 4246, is not dissimilar to the Indiana law. It provides that a defendant found incompetent to stand trial may be committed 'until the accused shall be mentally competent to stand trial or until the pending charges against him are disposed of according to law.' § 4246. Section 4247, applicable on its face only to convicted criminals whose federal sentences are about to expire, permits commitment if the prisoner is (1) 'insane or mentally incompetent' and (2) 'will probably endanger the safety of the officers, the property, or other interests of the United States, and . . . suitable arrangements for the custody and care of the prisoner are not otherwise available,' that is, in a state facility. See Greenwood v. United States, 350 U.S., at 373—374, 76 S.Ct., at 414—415. One committed under this section, however, is entitled to release when any of the three conditions no longer obtains, 'whichever event shall first occur.' § 4248. Thus, a person committed under § 4247 must be released when he no longer is 'dangerous.'
In Greenwood, the Court upheld the pretrial commitment of a defendant who met all three conditions of § 4247, even though there was little likelihood that he would ever become competent to stand trial. Since Greenwood had not yet stood trial, his commitment was ostensibly under § 4244. By the related release provision, § 4246, he could not have been released until he became competent. But the District Court had in fact applied § 4247, and found specifically that Greenwood would be dangerous if not committed. This Court approved that approach, holding § 4247 applicable before trial as well as to those about to be released from sentence. 350 U.S., at 374, 76 S.Ct., at 414. Accordingly, Greenwood was entitled to release when no longer dangerous, § 4248, even if he did not become competent to stand trial and thus did not meet the requirement of § 4246. Under these circumstances, the Court found the commitment constitutional.
Since Greenwood, federal courts without exception have found improper any straightforward application of §§ 4244 and 4246 to a defendant whose chance of attaining competency to stand trial is slim, thus effecting an indefinite commitment on the ground of incompetency alone. United States v. Curry, 410 F.2d 1372 (CA4 1969); United States v. Walker, 335 F.Supp. 705 (ND Cal.1971); Cook v. Ciccone, 312 F.Supp. 822 (WD Mo.1970); United States v. Jackson, 306 F.Supp. 4 (ND Cal.1969); Maurietta v. Ciccone, 305 F.Supp. 775 (WD Mo.1969). See In re Harmon, 425 F.2d 916 (CA1 1970); United States v. Klein, 325 F.2d 283 (CA2 1963); Martin v. Settle, 192 F.Supp. 156 (WD Mo.1961); Royal v. Settle, 192 F.Supp. 176 (WD Mo.1959). The holding in each of these cases was grounded in an expressed substantial doubt that §§ 4244 and 4246 could survive constitutional scrutiny if interpreted to authorize indefinite commitment.
These decisions have imposed a 'rule of reasonableness' upon §§ 4244 and 4246. Without a finding of dangerousness, one committed thereunder can be held only for a 'reasonable period of time' necessary to determine whether there is a substantial chance of his attaining the capacity to stand trial in the foreseeable future. If the chances are slight, or if the defendant does not in fact improve, then he must be released or granted a §§ 4247—4248 hearing.
B. The States. Some States 10 appear to commit indefinitely a defendant found incompetent to stand trial until he recovers competency. Other States require a finding of dangerousness to support such a commitment 11 or provide forms of parole. 12 New York has recently enacted legislation mandating release of incompetent defendants charged with misdemeanors after 90 days of commitment, and release and dismissal of charges against those accused of felonies after they have been committed for two-thirds of the maximum potential prison sentence. 13 The practice of automatic commitment with release conditioned solely upon attainment of competence has been decried on both policy and constitutional grounds. 14 Recommendations for changes made by commentators and study committees have included incorporation into pretrial commitment procedures of the equivalent of the federal 'rule of reason,' a requirement of a finding of dangerousness or of full-scale civil commitment, periodic review by court or mental health administrative personnel of the defendant's condition and progress, and provisions for ultimately dropping charges if the defendant does not improve. 15 One source of this criticism is undoubtedly the empirical data available which tend to show that many defendants committed before trial are never tried, and that those defendants committed pursuant to ordinary civil proceedings are, on the average, released sooner than defendants automatically committed solely on account of their incapacity to stand trial. 16 Related to these statistics are substantial doubts about whether the rationale for pretrial commitment—that care or treatment will aid the accused in attaining competency—is empirically valid given the state of most of our mental institutions. 17 However, very few courts appear to have addressed the problem directly in the state context.
In United States ex rel. Wolfersdorf v. Johnston, 317 F.Supp. 66 (S.D.N.Y.1970), an 86-year-old defendant committed for nearly 20 years as incompetent to stand trial on state murder and kidnapping charges applied for federal habeas corpus. He had been found 'not dangerous,' and suitable for civil commitment. The District Court granted relief. It held that petitioner's incarceration in an institution for the criminally insane constituted cruel and unusual punishment, and that the 'shocking circumstances' of his commitment violated the Due Process Clause. The court quoted approvingly the language of Cook v. Ciccone, 312 F.Supp., at 824, concerning the 'substantial injustice in keeping an unconvicted person in . . . custody to await trial where it is plainly evident his mental condition will not permit trial within a reasonable period of time.'
In a 1970 case virtually indistinguishable from the one before us, the Illinois Supreme Court granted relief to an illiterate deaf mute who had been indicted for murder four years previously but found incompetent to stand trial on account of his inability to communicate, and committed. People ex rel. Myers v. Briggs, 46 Ill. 2d 281, 263 N.E.2d 109 (1970). The institution where petitioner was confined had determined, '(I)t now appears that (petitioner) will never acquire the necessary communication skills needed to participate and cooperate in his trial.' Petitioner, however, was found to be functioning at a 'nearly normal level of performance in areas other than communication.' The State contended petitioner should not be released until his competency was restored. The Illinois Supreme Court disagreed. It held:
'This court is of the opinion that this defendant, handicapped as he is and facing an indefinite commitment because of the pending indictment against him, should be given an opportunity to obtain a trial to determine whether or not he is guilty as charged or should be released.' Id., at 288, 263 N.E.2d, at 113.
C. This Case. Respondent relies heavily on Greenwood to support Jackson's commitment. That decision is distinguishable. It upheld only the initial commitment without considering directly its duration or the standards for release. It justified the commitment by treating it as if accomplished under allied statutory provisions relating directly to the individual's 'insanity' and society's interest in his indefinite commitment, factors not considered in Jackson's case. And it sustained commitment only upon the finding of dangerousness. As Part A, supra, shows, all these elements subsequently have been held not simply sufficient, but necessary, to sustain a commitment like the one involved here.
The States have traditionally exercised broad power to commit persons found to be mentally ill. 18 The substantive limitations on the exercise of this power and the procedures for invoking it vary drastically among the States. 19 The particular fashion in which the power is exercised—for instance, through various forms of civil commitment, defective delinquency laws, sexual psychopath laws, commitment of persons acquitted by reason of insanity—reflects different combinations of distinct bases for commitment sought to be vindicated. 20 The bases that have been articulated include dangerousness to self, dangerousness to others, and the need for care or treatment or training. 21 Considering the number of persons affected, 22 it is perhaps remarkable that the substantive constitutional limitations on this power have not been more frequently litigated. 23
We need not address these broad questions here. It is clear that Jackson's commitment rests on proceedings that did not purport to bring into play, indeed did not even consider relevant, any of the articulated bases for exercise of Indiana's power of indefinite commitment. The state statutes contain at least two alternative methods for invoking this power. But Jackson was not afforded any 'formal commitment proceedings addressed to (his) ability to function in society,' 24 or to society's interest in his restraint, or to the State's ability to aid him in attaining competency through custodial care or compulsory treatment, the ostensible purpose of the commitment. At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.
We hold, consequently, that a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant. 25 Furthermore, even if it is determined that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal. In light of differing state facilities and procedures and a lack of evidence in this record, we do not think it appropriate for us to attempt to prescribe arbitrary time limits. We note, however, that petitioner Jackson has now been confined for three and one-half years on a record that sufficiently establishes the lack of a substantial probability that he will ever be able to participate fully in a trial.
These conclusions make it unnecessary for us to reach petitioner's Eighth-Fourteenth Amendment claim.
Petitioner also urges that fundamental fairness requires that the charges against him now be dismissed. The thrust of his argument is that the record amply establishes his lack of criminal responsibility at the time the crimes are alleged to have been committed. The Indiana court did not discuss this question. Apparently it believed that by reason of Jackson's incompetency commitment the State was entitled to hold the charges pending indefinitely. On this record, Jackson's claim is a substantial one. For a number of reasons, however, we believe the issue is not sufficiently ripe for ultimate decision by us at this time.
A. Petitioner argues that he has already made out a complete insanity defense. Jackson's criminal responsibility at the time of the alleged offenses, however, is a distinct issue from his competency to stand trial. The competency hearing below was not directed to criminal responsibility, and evidence relevant to it was presented only incidentally. 26 Thus, in any event, we would have to remand for further consideration of Jackson's condition in the light of Indiana's law of criminal responsibility.
B. Dismissal of charges against an incompetent accused has usually been thought to be justified on grounds not squarely presented here: particularly, the Sixth-Fourteenth Amendment right to a speedy trial, 27 or the denial of due process inherent in holding pending criminal charges indefinitely over the head of one who will never have a chance to prove his innocence. 28 Jackson did not present the Sixth-Fourteenth Amendment issue to the state courts. Nor did the highest state court rule on the due process issue, if indeed it was presented to that court in precisely the above-described form. We think, in light of our holdings in Parts II and III, that the Indiana courts should have the first opportunity to determine these issues.
C. Both courts and commentators have noted the desirability of permitting some proceedings to go forward despite the defendant's incompetency. 29 For instance, § 4.06(3) of the Model Penal Code would permit an incompetent accused's attorney to contest any issue 'susceptible of fair determination prior to trial and without the personal participation of the defendant.' An alternative draft of § 4.06(4) of the Model Penal Code would also permit an evidentiary hearing at which certain defenses, not including lack of criminal responsibility, could be raised by defense counsel on the basis of which the court might quash the indictment. Some States have statutory provisions permitting pretrial motions to be made or even allowing the incompetent defendant a trial at which to establish his innocence, without permitting a conviction. 30 We do not read this Court's previous decisions 31 to preclude the States from allowing at a minimum, an incompetent defendant to raise certain defenses such as insufficiency of the indictment, or make certain pretrial motions through counsel. Of course, if the Indiana courts conclude that Jackson was almost certainly not capable of criminal responsibility when the offenses were committed, dismissal of the charges might be warranted. But even if this is not the case, Jackson may have other good defenses that could sustain dismissal or acquittal and that might now be asserted. We do not know if Indiana would approve procedures such as those mentioned here, but these possibilities will be open on remand.
Reversed and remanded.
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.