Carr v. State

303 Ga. 853

• Court: Supreme Court of Georgia
• Decided: June 18, 2018
• Docket: S18A0100
• Status: Published

Opinion

303 Ga. 853 FINAL COPY

S18A0100. CARR v. THE STATE.

NAHMIAS, Justice.

On May 31, 2017, the trial court in this case ordered the sheriff to take

Ricky Lee Carr into custody solely because Carr had been charged with

committing violent crimes and found mentally incompetent to stand trial. The

court directed that Carr be transferred to and held by the Georgia Department of

Behavioral Health and Developmental Disabilities for evaluation within 90 days

as to whether there is a substantial probability that he will attain competency in

the foreseeable future. In this appeal, Carr contends that this detention by the

State violates his constitutional right to due process.

Carr’s due process challenge to the statute that required his detention —

OCGA § 17-7-130 (c) — can be divided into two parts. He argues first that the

duration of the confinement allowed by the statute — which, he asserts, could

be indefinite — is unconstitutional. We agree that indefinite or even unreasonably extended detention under OCGA § 17-7-130 (c) would be

unconstitutional, but we do not agree that the statute permits such extended

detention. Instead, to avoid that constitutional concern, we construe OCGA §

17-7-130 (c) as limiting the detention it authorizes to the reasonable time needed

to fulfill its purpose. And because Carr initiated this appeal shortly after he was

ordered to be detained, he has not as of yet shown on the record that the duration

of his confinement is unreasonable.

Carr also argues that the mandatory nature of his confinement based on

OCGA § 17-7-130 (c) is not reasonably related to the State’s legitimate and

important purpose of accurately determining whether a defendant can be

restored to competency to be tried. Carr says this is so because the statute

requires that all defendants found incompetent after being accused of violent

crimes, but not those accused of other crimes, be detained for evaluation

regardless of the characteristics or circumstances of the particular defendant’s

mental condition. We agree that such automatic detention without an

individualized determination of whether the confinement reasonably advances

the government’s purpose violates a defendant’s right to due process, and we

therefore hold that this part of OCGA § 17-7-130 (c) cannot be applied

2 constitutionally to Carr or similarly situated defendants who are not already

being detained on another, lawful ground.

For these reasons, which are explained in much greater detail below, we

reverse the part of the trial court’s judgment holding that OCGA § 17-7-130 (c)

is constitutional, vacate the part of the judgment ordering Carr to be detained for

inpatient evaluation, and remand the case for further proceedings consistent with

this opinion.

1. Background

Ricky Lee Carr was arrested on June 16, 2016; he was released on bond

the same day. About five months later, on November 9, 2016, a Catoosa County

grand jury returned an indictment charging Carr with rape, aggravated sexual

battery, two counts of child molestation, and criminal attempt to commit a

felony.1 On November 29, the trial court signed a consent order for the

evaluation of Carr’s competency to stand trial. Dr. Sam Perri from the Georgia

Department of Behavioral Health and Developmental Disabilities (the

“department”) evaluated Carr and then filed a report with the trial court on

1 The arrest warrant, bond order, and indictment are not in the record on appeal because Carr specified that only a limited record be transmitted to this Court. This information comes from representations made by the attorneys for the parties in their filings and at hearings in the trial court.

3 March 9, 2017. Dr. Perri concluded that Carr is not competent to stand trial. He

explained that Carr is in the “mild/moderate range of intellectual functioning”

and has been diagnosed with cerebral palsy. Dr. Perri further explained that

although Carr seems to understand the charges presented against him, he does

not appear to understand the possible consequences if he is found guilty, he does

not understand courtroom procedure or the roles of court personnel, and he does

not have the cognitive abilities to assist in his defense. Dr. Perri also reported:

In view of Mr. Carr’s low intellectual functioning there is a strong probability that he would not be able to be restored to competency. Nevertheless, it is my opinion that there should be an attempt to restore Mr. Carr to competency. If the court adjudicates Mr. Carr as not competent it is recommended that his restoration occur in a community setting rather than in a psychiatric facility. If this occurs, I have a staff person that will coordinate a restoration to competency program for Mr. Carr. Mr. Carr’s mother also stated that she would assist in ensuring that Mr. Carr participates in a restoration program.

On April 27, 2017, Carr filed a petition to seek the restoration of his

competency in a community (outpatient) setting. The petition also raised

constitutional challenges to OCGA § 17-7-130, the Georgia statute governing

pleas of mental incompetence to stand trial, claiming that insofar as the statute

requires him to be placed in custody for attempted competency restoration, it

4 deprives him of due process and of equal protection of the laws in violation of

the United States and Georgia Constitutions. The court then held two hearings

on Carr’s competency. At the first hearing on April 28, the court admitted Dr.

Perri’s report and found Carr incompetent to stand trial based on the report. The

court then announced, “it appears to me that I have to transfer custody to the

department.” In response, Carr’s counsel reiterated his constitutional challenges

to OCGA § 17-7-130.2

At the second hearing, on May 31, 2017, the trial court began by

explaining that Carr had been found incompetent and was not contesting that

finding, so the question to be decided was “what we do with the next stage with

Mr. Carr.” Carr again raised his constitutional challenges to OCGA § 17-7-130,

arguing that because he was out on bond, it would be a violation of his due

process and equal protection rights to order him into custody merely because he

has been found incompetent to stand trial. The State argued that the statute is

constitutional and that Carr’s constitutional challenges were untimely because

he had not raised them at the first opportunity or with sufficient clarity. Later

2 Apparently an order was entered after this hearing, but that order was rescinded. Neither the rescinded order nor the reason for the rescission is in the record on appeal.

5 that day, the trial court issued an order finding that Carr is incompetent to stand

trial and holding summarily that his constitutional challenges were timely raised

and that OCGA § 17-7-130 does not violate constitutional due process or equal

protection. The order also directed the sheriff to take custody of Carr and

deliver him to the department, which was directed to evaluate and diagnose

within 90 days of the order whether there is a substantial probability that Carr

can attain mental competency to stand trial in the foreseeable future.3

On June 8, 2017, the trial court entered a certificate of immediate review

of its order. Carr then filed an application for interlocutory appeal, which this

Court granted on August 2.4 Carr filed a notice of appeal on August 11, and

after the case was docketed and briefed, the Court heard oral arguments on

3 Neither party has challenged the trial court’s ruling that Carr is mentally incompetent to stand trial, and that part of the court’s judgment will stand affirmed. 4 As it did in the trial court, the State argues here that Carr did not timely raise his constitutional challenges. We expressed interest in this issue when granting the application, but a review of the more complete record we now have shows that Carr’s attorney clearly raised the constitutional challenges in a timely manner. Because Carr obtained review of the trial court’s pretrial detention order by following the procedures for interlocutory appeals, see OCGA § 5-6-34 (b), we need not decide whether he would have been entitled to a direct appeal under the collateral order doctrine. See Warren v. State, 297 Ga. 810, 811 n.2 (778 SE2d 749) (2015); United States v. Ferro, 321 F3d 756, 759-760 (8th Cir. 2003) (collecting cases holding that the federal collateral order doctrine applies in this situation).

6 December 11.5

2. The statute

Under OCGA § 17-7-130 (b) (1),

[i]f an accused files a motion requesting a competency evaluation, the court may order the department to conduct an evaluation by a physician or licensed psychologist to determine the accused’s mental competency to stand trial and, if such physician or licensed psychologist determines the accused to be mentally incompetent to stand trial, to make recommendations as to restoring the accused to competency.

The statutory provision in dispute here, OCGA § 17-7-130 (c), then says, in

relevant part:

If the court finds the accused is mentally incompetent to stand trial, the court may order a department physician or licensed psychologist to evaluate and diagnose the accused as to whether there is a substantial probability that the accused will attain mental competency to stand trial in the foreseeable future. The court shall retain jurisdiction over the accused and shall transfer the accused to the physical custody of the department. At its discretion, the court may allow the evaluation to be performed on the accused as an outpatient if the accused is charged with a nonviolent offense. Such evaluation shall be performed within 90 days after the department has received actual custody of an accused or, in the case of an outpatient, a court order requiring evaluation of an accused. . . . .

OCGA § 17-7-130 (a) (7) defines “[n]onviolent offense” as “any offense other

5 Because Carr asks this Court to strike down a state statute as unconstitutional, we invited the Attorney General’s office to file a brief defending OCGA § 17-7-130 (c), which it did.

7 than a violent offense,” and OCGA § 17-7-130 (a) (11) (A) defines “[v]iolent

offense” to include “(i) A serious violent felony; (ii) A sexual offense; (iii)

Criminal attempt to commit a serious violent felony; [and] (iv) Criminal attempt

to commit a sexual offense . . . .”6

If the evaluation shows that the defendant is mentally competent to stand

trial, “the department shall immediately report that determination” and return the

defendant to the court, with the defendant remaining in the custody of the

sheriff, the court’s detention facility, or the department’s secure facility. OCGA

§ 17-7-130 (c) (1). See also id. (d) (explaining that if the department

“determines at any time” that the defendant is competent, he must be returned

6 “Violent offense” is defined in full as: (A) (i) A serious violent felony [as defined in OCGA § 17-10-6.1]; (ii) A sexual offense [as defined in OCGA § 17-10-6.2]; (iii) Criminal attempt to commit a serious violent felony; (iv) Criminal attempt to commit a sexual offense; (v) Aggravated assault; (vi) Hijacking a motor vehicle in the first degree or hijacking an aircraft; (vii) Aggravated battery; (viii) Aggravated stalking; (ix) Arson in the first degree or in the second degree; (x) Stalking; (xi) Fleeing and attempting to elude a police officer; (xii) Any offense which involves the use of a deadly weapon or destructive device; and (B) Those felony offenses deemed by the court to involve an allegation of actual or potential physical harm to another person.

8 to the court, with custody maintained in the same way). If the evaluation shows

that the defendant is mentally incompetent to stand trial but there is a substantial

probability that the defendant will be restored to competency in the foreseeable

future, he can continue to be held in the department’s custody for up to nine

more months to receive treatment. See id. (c) (3). If the evaluation shows that

the defendant is unlikely to regain competency in the foreseeable future, within

45 days the court must consider a nolle prosequi of the pending charges and

release the defendant or seek his civil commitment and commit or release him

based on the outcome of the civil commitment trial. See id. (c) (2), (e).7

It is clear that the trial court in this case did what the statute mandates:

because Carr is charged with violent offenses, once the court found him

mentally incompetent to stand trial, the court had no statutory discretion to

consider Dr. Perri’s recommendation of attempted restoration in an outpatient

setting or any other evidence regarding Carr’s mental condition, but rather was

required to transfer Carr to the physical custody of the department to be detained

there for up to 90 days while he was evaluated. The question we will address

7 As the record stands, subsections (c) (1)-(3), (d), and (e) of OCGA § 17-7-130 have not yet been applied to Carr, and we express no opinion on their constitutionality.

9 is whether that statutorily mandated confinement at a government institution

complies with the constitutional requirement of due process.8

3. The interests of Carr and the State

“In our society liberty is the norm, and detention prior to trial or without

trial is the carefully limited exception.” United States v. Salerno, 481 U. S. 739,

755 (107 SCt 2095, 95 LE2d 697) (1987). Indeed, “the most elemental of

liberty interests [is] the interest in being free from physical detention by one’s

own government.” Hamdi v. Rumsfeld, 542 U. S. 507, 529 (124 SCt 2633, 159

LE2d 578) (2004) (plurality). See also Foucha v. Louisiana, 504 U.S. 71, 80

(112 SCt 1780, 118 LE2d 437) (1992) (“‘It is clear that commitment [to a

8 Carr raises his due process claim under both the United States and Georgia Constitutions, which both guarantee a person’s right not to “be deprived of life, liberty, or property” without “due process of law.” U. S. Const. amend. XIV; Ga. Const. of 1983, Art. I, Sec. I, Par. I. We have addressed due process claims raised under either Constitution in the same way. See, e.g., Women’s Surgical Center, LLC v. Berry, 302 Ga. 349, 354 (806 SE2d 606) (2017). See also BFI Waste Systems of North America v. DeKalb County, Georgia, 303 FSupp.2d 1335, 1349 n.13 (N.D. Ga. 2004). We will follow that practice in this case, as Carr makes no argument for a different approach. Carr also argues that OCGA § 17-7-130 (c) violates the similarly worded equal protection guarantees in both Constitutions, see U. S. Const. amend. XIV; Ga. Const. of 1983, Art. I, Sec. I, Par. II, because the statute requires his detention without the consideration of individualized circumstances afforded by the commitment procedures for persons committed civilly and persons found not guilty due to insanity and also afforded in proceedings to involuntarily medicate defendants to restore competency to stand trial. Because we hold unconstitutional the portion of the statute that mandates Carr’s detention without consideration of his individual circumstances as a matter of due process, we need not decide whether the statute also runs afoul of equal protection guarantees.

10 mental institution] for any purpose constitutes a significant deprivation of liberty

that requires due process protection.’” (citation omitted)); id. at 90 (Kennedy,

J., dissenting) (“As incarceration of persons is the most common and one of the

most feared instruments of state oppression and state indifference, we ought to

acknowledge at the outset that freedom from this restraint is essential to the

basic definition of liberty in the Fifth and Fourteenth Amendments of the

Constitution.”); Hood v. Carsten, 267 Ga. 579, 581 (481 SE2d 525) (1997)

(explaining that “[b]ecause a bond revocation involves the deprivation of one’s

liberty, . . . the trial court’s decision to revoke bond must comport with at least

minimal state and federal due process requirements”).

Before he was found incompetent to stand trial and ordered detained for

further evaluation under OCGA § 17-7-130 (c), Carr retained this “strong

interest in liberty,” Salerno, 481 U. S. at 750, as he was a free man. He had been

arrested almost a year earlier, but released on bond the same day. Although

accused of crimes defined as “violent offenses” under OCGA § 17-7-130, Carr

is, of course, presumed innocent until proven guilty, and his detention was not

based on any judicial finding that he poses a danger to himself, to anyone else,

or to the community in general. No evidence showing his dangerousness was

11 presented at the OCGA § 17-7-130 hearings. To the contrary, the fact that he

was granted bail meant that a judge had found that he “[p]oses no significant

threat or danger to any person, to the community, or to any property in the

community,” OCGA § 17-6-1 (e) (2), and nothing in the record suggests that

Carr had done anything to justify changing that finding or had violated his bond

in any way. A finding of mental incompetence to stand trial does not equate to

a finding of dangerousness to self or others. See Jackson v. Indiana, 406 U. S.

715, 727-728 (92 SCt 1845, 32 LE2d 435) (1972).9

Nevertheless, in some limited circumstances, pretrial detention is

permissible as a regulation serving a legitimate and “sufficiently compelling”

government interest. Salerno, 481 U. S. at 748-749. Detention may be

9 This opinion addresses only defendants like Carr, who are on pretrial bond and face detention solely due to a finding of mental incompetence to stand trial. The constitutional analysis may well be different for defendants found incompetent who are already detained before trial because, for example, they were denied bond or had their bond revoked, were already serving a criminal sentence, or were committed civilly. Compare Vitek v. Jones, 445 U. S. 480, 494 (100 SCt 1254, 63 LE2d 552) (1980) (holding, in the context of a prison inmate transferred to a mental hospital for treatment, that “the stigmatizing consequences of a transfer to a mental hospital for involuntary psychiatric treatment, coupled with the subjection of the prisoner to mandatory behavior modification as a treatment for mental illness, constitute the kind of deprivations of liberty that requires procedural protections”), with Meachum v. Fano, 427 U. S. 215, 225 (96 SCt 2532, 49 LE2d 451) (1976) (holding that a convicted inmate does not have a due process right to remain in or be transferred to any particular prison because his liberty interest has been sufficiently extinguished by a conviction and sentence), and Ervin v. Busby, 992 F2d 147, 150 (8th Cir. 1993) (“[T]he due process clause is not implicated when a pretrial detainee is transferred from one prison to another.”).

12 “permissible regulation,” rather than “impermissible punishment,” if it is

“rationally . . . connected” to a non-punitive purpose and it is not excessive in

relation to that purpose. Id. at 747 (citations and punctuation omitted). In an

opinion addressing another state’s statute that required a defendant who was

found mentally incompetent to stand trial to be committed to a mental institution

until he was made competent, the United States Supreme Court explained the

applicable due process test in this way: “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.” Jackson, 406 U. S. at 738

(emphasis supplied).

The apparent non-punitive purpose of detention based on OCGA § 17-7-

130 (c) is to accurately evaluate whether the defendant’s competency can be

restored so that he can be tried. See id. (“[A] department physician or licensed

psychologist [will] evaluate and diagnose the accused as to whether there is a

substantial probability that the accused will attain mental competency to stand

trial in the foreseeable future.”). That is a legitimate and important government

interest. See Warren v. State, 297 Ga. 810, 826 (778 SE2d 749) (2015)

(explaining that “‘[t]he Government’s interest in bringing to trial an individual

13 accused of a serious crime is important’” and includes both a “‘substantial

interest in timely prosecution’” and “‘a concomitant, constitutionally essential

interest in assuring that the defendant’s trial is a fair one’” (quoting Sell v.

United States, 539 U. S. 166, 180 (123 SCt 2174, 156 LE2d 197) (2003)). Thus,

for defendants like Carr, we must determine whether there is a reasonable

relation between this government purpose and both the duration and the nature

of the commitment depriving them of their liberty. See Jackson, 406 U. S. at

738. We will address those two aspects of the detention required by OCGA §

17-7-130 (c) in turn.

4. Duration of the detention

We start with the duration of the detention, recognizing that this is an

issue only if the person can lawfully be detained in the first place.

(a) In 1972, the United States Supreme Court held in Jackson that

Indiana’s statute mandating pretrial detention of criminal defendants based

solely on their mental incompetence to stand trial violated due process because

it required that defendants be detained until they regained competency. See 406

U.S. at 731. This meant that defendants like Jackson, a deaf and mute man with

the “mental level of a pre-school child” and little likelihood of ever attaining

14 competency, would be detained indefinitely. See id. at 717, 725-726. While

declining to enumerate the maximum length of time a defendant could ever be

detained to evaluate competency, the Court held that, as a matter of

constitutional due process, “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.” Id. at 738.10

Like many states and the federal government, Georgia addressed

Jackson’s holding by establishing an express statutory time limit for the

evaluation of a defendant’s likelihood to attain competency: when a defendant

is found incompetent to stand trial and taken into custody on that basis, the court

“shall transfer [the defendant] to the physical custody of the department” and the

evaluation of the defendant’s likelihood to regain competency “shall be

performed within 90 days after the department has received actual custody of an

10 The Court also held that the Indiana statute violated Jackson’s right to equal protection because it “subject[ed] 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 [or convicted of criminal] offenses.” Jackson, 406 U. S. at 730.

15 accused.” OCGA § 17-7-130 (c). See also 18 USC § 4241 (d) (limiting the

time that a federal defendant found incompetent can be hospitalized for

treatment to “a reasonable period of time, not to exceed four months, as is

necessary to determine whether there is a substantial probability that in the

foreseeable future he will attain the capacity to permit the proceedings to go

forward”); Grant H. Morris & J. Reid Meloy, Out of Mind? Out of Sight: The

Uncivil Commitment of Permanently Incompetent Criminal Defendants, 27 U.C.

Davis L. Rev. 1, 10 (1993) (explaining that in response to Jackson, 20 states,

including Georgia, specified the length of the detention or evaluation period).11

Carr does not contend that the 90-day maximum evaluation period in

OCGA § 17-7-130 (c) is necessarily excessive to achieve the government’s

purpose of accurately evaluating a defendant, and we conclude that it is not.

Many states have similar time limits. See Morris & Meloy, supra, at 10 (“Of the

twenty states that specify the length of the detention period, ninety days is the

most frequent period specified, with the shortest period being thirty days and the

11 The 90-day time limit for evaluation first appeared in the version of OCGA § 17-7-130 enacted in 1977, five years after Jackson. See Ga. L. 1977, p. 1293. Before then, Georgia law simply provided that defendants found mentally incompetent to be tried were “to be delivered to the superintendent of the Milledgeville State Hospital, there to remain until discharged in the manner prescribed by law.” Code 1933, § 27-1502.

16 longest being twelve months.” (footnotes omitted)). Indeed, the deadline in

Georgia’s statute is a month shorter than the four-month maximum allowed by

the federal statute, which has been upheld against due process challenges based

on Jackson by several federal circuit courts. See, e.g., United States v. Dalasta,

856 F3d 549, 553-554 (8th Cir. 2017); United States v. Strong, 489 F3d 1055,

1062-1063 (9th Cir. 2007).

Carr argues, however, that while the express time limit of 90 days for

completion of the evaluation may be reasonable, the statutory scheme actually

allows a defendant detained due to OCGA § 17-7-130 (c) to be confined much

longer than that, because there are no explicit provisions governing how quickly

he must be transferred to the department, how quickly after the evaluation is

done the department must provide it to the court, how quickly he will be

returned to the court, or how quickly the court will act on the evaluation. Carr

is correct that the statute says the 90-day clock begins to tick only when a

defendant is physically delivered to the department and stops as soon as the

evaluation is complete; there are no express time limits on the steps that must

17 happen before and after that evaluation if the defendant remains incompetent.12

If the lack of explicit deadlines for each of these steps meant that a defendant

could be detained indefinitely under OCGA § 17-7-130 (c), the statute would be

unconstitutional under Jackson. But OCGA § 17-7-130 (c) is not facially

unconstitutional, because unlike the Indiana statute in Jackson, the Georgia

statute does not mandate indefinite detention (that is, detention until an

unattainable condition is achieved); our statute simply does not include express

time limits for each of the several steps required to complete the statutory

process.

(b) “[A] statute should not be deemed facially invalid unless it is not

readily subject to a narrowing construction,” as “every reasonable construction

must be resorted to, in order to save a statute from unconstitutionality.” Haley

v. State, 289 Ga. 515, 522 (712 SE2d 838) (2011) (citations and punctuation

12 If the evaluation shows that the defendant is mentally competent to stand trial, the statute specifies that the department “shall immediately report that determination and the reasons therefor to the court, and the court shall submit such determination” to the attorneys for the defendant and the State. OCGA § 17-7-130 (c) (1) (emphasis supplied). The department must also return the defendant, normally within 20 days, and the court must hold a bench trial on the defendant’s competency to stand trial within 45 days of receiving the evaluation or, if demanded, conduct a jury trial on competency within six months. See id. Also, if the department determines that the defendant has regained competency “at any time,” it must notify the court, and the same deadlines then apply; the court need not wait for a completed evaluation. See id. (d).

18 omitted). Although there are not explicit time limits on every step of the process

used in determining an incompetent defendant’s ability to be restored to

competency, the express 90-day deadline on the evaluation period itself

indicates that the General Assembly meant for the overall period of a

defendant’s detention under OCGA § 17-7-130 (c) to be limited to the

reasonable time needed to serve the purpose of accurate evaluation. Thus, a

reasonable time limit for each step should be implied to preserve the statute’s

constitutionality.

In doing so, we note that in Jackson, which was decided before the four-

month time limit was codified in 18 USC § 4241 (d), the Court explained that

lower courts interpreting federal statutes allowing pretrial detention of mentally

incompetent defendants had “expressed substantial doubt that [those statutes]

could survive constitutional scrutiny if interpreted to authorize indefinite

commitment” on the ground of incompetency alone. 406 U. S. at 733. Thus,

those courts imposed a “rule of reasonableness” on the statutes, meaning that

“[w]ithout 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

19 future.” Id. We take the same approach with OCGA § 17-7-130 (c).

In determining what duration of confinement is reasonable in this context,

the court should consider not only the total time of detention but also whether

the amount of time spent at a particular challenged step is unreasonable. For

example, a federal circuit court considered a lawsuit brought on behalf of

mentally incompetent defendants in Oregon who had been held between one and

five months awaiting transfer to the state mental hospital. See Oregon

Advocacy Center v. Mink, 322 F3d 1101, 1106 (9th Cir. 2003).13 Citing

Jackson, the court explained that “[h]olding incapacitated criminal defendants

in jail for weeks or months violates their due process rights because the nature

and duration of their incarceration bear no reasonable relation to the evaluative

and restorative purposes for which courts commit those individuals.” Mink, 322

F3d at 1122 (citation and punctuation omitted). The court therefore affirmed the

district court’s ruling that these defendants had a due process right to

“reasonably timely transport to a treatment facility.” Id. at 1119, 1122 (citation

13 At the time of Mink, the Oregon statute allowed the trial court, after finding a defendant incompetent, to commit him to a state mental hospital or release him on supervision; if the defendant was committed, the statute required the hospital to evaluate him within 60 days of admission and report that evaluation to the court within 90 days of admission. See Mink, 322 F3d at 1106.

20 and punctuation omitted). See also Advocacy Center for Elderly and Disabled

v. Louisiana Dept. of Health and Hospitals, 731 FSupp.2d 603, 621 (E.D. La.

2010) (relying on Jackson to hold that “the continued imprisonment of the

Incompetent Detainees in parish jails . . . does not bear a reasonable relationship

to either restoring the Detainees to competency or determining that they will

never become competent”).

Like the Court in Jackson, see 406 U. S. at 737-738, we need not decide

precisely how long a defendant may be detained solely pursuant to OCGA § 17-

7-130 (c) before he is delivered to the department for his evaluation, or how

much time may pass between the completion of the evaluation and the court’s

completion of the statutorily prescribed next steps. However, to maintain the

facial constitutionality of OCGA § 17-7-130 (c) in this regard, we construe the

statute to require that each step it prescribes last only as long as reasonably

necessary to serve the State’s legitimate purpose of accurately determining the

likelihood of the defendant’s attaining competency, and that the total period of

detention based on the statute is also reasonable in relation to that purpose. See

Jackson, 406 U. S. at 738. Specific defendants can enforce this constitutional

requirement by bringing as-applied challenges, either by challenging the trial

21 court’s evaluation order if it is believed to specify an unreasonable duration of

confinement or by filing a petition for habeas corpus under OCGA § 9-14-1 (a)

if their detention pursuant to an OCGA § 17-7-130 (c) order is alleged to have

extended for an unreasonable time.

As his case is presented here, Carr cannot prevail on such a challenge. He

initiated this appeal only days after being ordered detained for evaluation under

OCGA § 17-7-130 (c), so he cannot show from the record that the duration of

his actual confinement is unreasonable (assuming he can be properly detained

at all). As for the trial court’s order, it requires that the department evaluate

Carr within 90 days of the date of the order, rather than 90 days of the time he

arrives at the department (as OCGA § 17-7-130 (c) allows). Thus, if complied

with, the order would prevent any time that might pass between the entry of the

order and the sheriff’s delivery of Carr to the department from extending the 90-

day period that we have said is facially reasonable. The order does not limit the

time for completing the next steps after the evaluation, but neither does it

specify an unreasonable time for these steps. This is not, however, the end of

the due process analysis.

5. Nature of the detention

22 No matter how short the duration of the detention, if the nature of the

confinement is not reasonably related to the government’s purpose of accurately

evaluating the individual defendant’s potential to attain competency, the

detention is unconstitutional. See Foucha, 504 U. S. at 79 (“Due process

requires that the nature of commitment bear some reasonable relation to the

purpose for which the individual is committed.” (citing Jackson, 406 U. S. at

738)). Carr challenges the automatic nature of the detention under OCGA § 17-

7-130 (c) for all defendants who are charged with violent offenses, as he is. We

conclude that this challenge has merit.14

14 Jackson did not decide the “nature” issue. As mentioned above, Jackson’s due process holding was “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.” 406 U. S. at 738 (emphasis supplied). See also Cooper v. Oklahoma, 517 U. S. 348, 365 (116 SCt 1373, 134 LE2d 498) (1996) (in a case holding that due process prohibits a state from requiring a defendant to prove his incompetence to stand trial by clear and convincing evidence, quoting Jackson for the proposition that “the State may detain the incompetent defendant for ‘the reasonable period of time necessary to determine whether there is a substantial probability that he will attain (competence) in the foreseeable future’”). The way the Jackson Court phrased its due process holding, along with the way the Supreme Court has subsequently referred to Jackson, has been understood by some courts as implying that all defendants can be held solely based on their mental incompetence, if that detention is limited to a reasonable time. See, e.g., United States v. Filippi, 211 F3d 649, 652 (1st Cir. 2000) (“[Jackson] upheld in principle commitment for a ‘reasonable period of time necessary to determine whether there is a substantial probability that (the defendant) will attain that capacity in the foreseeable future.’” (quoting Jackson, 406 U. S. at 738)). However, the constitutional challenge presented in Jackson, and thus the holding of that case, addressed only the indefinite duration of Jackson’s commitment, and while the Supreme Court’s statements certainly indicate that commitment of a defendant who is found incompetent is permissible to determine if he can be restored to competency to be tried, they do not suggest, and the

23 (a) We start with the understanding that confinement at a department

facility is not required for the accurate evaluation the State seeks to obtain. The

statute itself tells us this. OCGA § 17-7-130 (c) provides outpatient evaluation

as an option for defendants who have been accused of nonviolent offenses: “At

its discretion, the court may allow the evaluation to be performed on the accused

as an outpatient if the accused is charged with a nonviolent offense.”15 This

Court has never held, that so long as the duration of detention is reasonable, the government may detain every defendant found incompetent automatically, without any sort of individualized finding as to whether the detention bears a reasonable relation to the purpose for that defendant’s commitment. Such a holding would run against the reasoning of cases like Salerno, as well as the Jackson Court’s discussion of the importance of individualized determinations supporting commitment in the equal protection section of its opinion and its discussion in the due process section of the process Jackson was not afforded. See 406 U. S. at 727-730 (explaining that under other Indiana statutes authorizing commitment due to mental illness or incompetence, the person whom the state is seeking to detain is entitled to “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,” with “the commitment determination . . . made by the court alone, and appellate review . . . available”); id. at 738 (explaining that “Jackson was not afforded any formal commitment proceedings addressed to his ability to function in society, 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” (citation and punctuation omitted)). 15 The option of outpatient evaluation was added to OCGA § 17-7-130 in 2007. See Ga. L. 2007, p. 663. See also Marisol Orihuela, The Unconstitutionality of Mandatory Detention During Competency Restoration, 22 Berkeley J. Crim. L. 1, 21 (2017) (explaining that concerns about state mental institutions and advances in medication for the mentally ill have “revealed that providing mental health care in the community was not just desirable but also possible”). The sentence before the one granting the trial court discretion to order outpatient evaluation says that the court “shall transfer the accused to the physical custody of the department.” OCGA § 17-7-130 (c) (emphasis supplied). Although the word “shall” is “generally construed as a mandatory directive,” this Court has explained that it “need not always be construed in that fashion,” if the context in which it is used indicates a permissive instruction. Lewis v. State, 283 Ga. 191, 194 (657 SE2d 854) (2008). To avoid rendering meaningless or contradictory the part of the statute that expressly authorizes trial

24 reflects a legislative judgment that inpatient evaluation is not always necessary

to accurately determine whether competency can be restored. So is in-custody

evaluation that much better than outpatient evaluation as to always justify the

deprivation of a defendant’s liberty, even though it is not necessary to

accomplish the government’s goal? Although the federal statute (like OCGA

§ 17-7-130) contains no legislative findings on this point, several federal courts

upholding the constitutionality of 18 USC § 4241 (d), which mandates

hospitalization to evaluate the likelihood of restoring the competency of every

incompetent federal defendant (not only those charged with certain offenses as

in Georgia), have postulated several potential benefits of in-custody evaluations.

The reasoning of those decisions does not lead us to the conclusion that

Georgia’s statute is constitutional.

For example, the Ninth Circuit, following the lead of the First and Eighth

Circuits, has explained that a determination of whether a defendant is likely to

regain competence “requires a more ‘careful and accurate diagnosis’ than the

courts to exercise discretion and order outpatient evaluation for defendants charged with nonviolent offenses, we must conclude that “shall” as used in the second sentence of OCGA § 17-7-130 (c) is not a mandatory directive when the trial court exercises its discretion to order outpatient evaluation. See Garrison v. Perkins, 137 Ga. 744, 755 (74 SE 541) (1912).

25 ‘brief interviews’ and ‘review of medical records’ that tend to characterize the

initial competency proceeding.” Strong, 489 F3d at 1062 (quoting United States

v. Filippi, 211 F3d 649, 651 (1st Cir. 2000), and United States v. Ferro, 321 F3d

756, 762 (8th Cir. 2003)). That seems true enough, but neither the legislature

nor these courts have explained why commitment is reasonable in every case to

achieve this more “careful and accurate diagnosis.” A defendant who is

evaluated by the department on an outpatient basis can certainly be subjected to

more than a “brief interview,” and the department can easily collect more

information from and about him than what is provided by a mere “review of

medical records.”

The Eighth Circuit has also suggested that the defendant’s commitment

“appropriately affords additional time during which the Attorney General may

explore medical options.” Ferro, 321 F3d at 762. True again, but under OCGA

§ 17-7-130 (c), the department has the same additional time — up to 90 days —

to “explore medical options” for an outpatient defendant as for an inpatient one.

See OCGA § 17-7-130 (c) (“Such evaluation shall be performed within 90 days

after the department has received actual custody of an accused or, in the case of

26 an outpatient, a court order requiring evaluation of an accused.”).16 The same

court has asserted that detention is authorized because determining the potential

for improvement in a defendant’s mental condition “is an uncertain issue

Congress committed initially to medical professionals.” Dalasta, 856 F3d at

553-554. See also State v. Coats, 3 NE3d 528, 534 (Ind. 2014) (“[T]he

legislature entrusts only the superintendent of the state institution where the

defendant has been committed with the power to determine that the defendant

does not have a substantial probability of attaining competency to stand trial

16 We also note that although the federal statute and more than ten states, including Georgia, mandate detention for a certain period to evaluate an incompetent defendant’s likelihood to regain competency, see Orihuela, supra, at 22, other states have concluded that such measures are not necessary in every case. Statutes in several states indicate that the evaluation of competency and likelihood of restoration should occur at the same time. See, e.g., W. Va. Code § 27-6A-3 (e) (“If at any point in the proceedings the defendant is found not competent to stand trial, the court of record shall at the same hearing, upon the evidence, make further findings as to whether or not there is a substantial likelihood that the defendant will attain competency within the next ensuing three months.”); 22 Okla. Stat. § 1175.5 (2) (requiring that the court or the jury determining a defendant’s competency also decide whether “the incompetency of the person [can] be corrected within a reasonable period of time”); Conn. Gen. Stat. § 54-56d (f) (“If the court finds that the defendant is not competent, the court shall also find whether there is a substantial probability that the defendant, if provided with a course of treatment, will regain competency within the maximum period of any placement order permitted under this section.”). See also Ohio Rev. Code Ann. § 2945.38 (B) (1) (a) (allowing the court to order continuing evaluation of a defendant charged with a felony for up to four months only if the court is unable at the time of the competency hearing to determine if there is a substantial probability that the defendant will become competent to stand trial within one year); Or. Rev. Stat. § 161.365 (1) (explaining that “[i]f the court determines the assistance of a psychiatrist or psychologist would be helpful,” the court may order an examination conducted by a certified evaluator or may commit a defendant for up to 30 days for evaluation at a state mental hospital or similar facility).

27 within the foreseeable future.”). Under the Georgia statutory scheme, however,

commitment is not required to ensure that the evaluation is conducted by a

medical professional trusted by the General Assembly. Whether the defendant

is evaluated on an outpatient or inpatient basis, the evaluation must be done by

“a department physician or licensed psychologist.” OCGA § 17-7-130 (c).

The Dalasta court also said that commitment “provides the Attorney

General’s medical experts an opportunity to evaluate the defendant's

dangerousness.” 856 F3d at 554. But an evaluation of dangerousness is not a

purpose indicated anywhere in the federal or Georgia statute, and indeed

Jackson distinguished between a finding of dangerousness and a finding of

incompetence to stand trial. See 406 U. S. at 727-728.

Finally, to the extent the State asserts that the constant surveillance and

close control afforded by detention is important in all cases to ensure an accurate

determination of the likelihood of competency restoration, see Coats, 3 NE3d

at 534, our legislature evidently did not rest the current version of OCGA § 17-

7-130 (c) on that theory, because the statute allows a large group of accused

offenders — those charged with nonviolent crimes — to avoid these supervisory

conditions. Moreover, the kind of crime the defendant allegedly committed

28 bears no obvious relationship to the appropriate process for evaluating the

probability that he will attain competency to stand trial in the foreseeable future.

See Morris & Meloy, supra, at 18 (“A defendant charged with a serious crime

is not by that fact more difficult to treat or less responsive to treatment than a

defendant charged with a less serious crime.”).

Rather than the particular crime with which a defendant is charged, it is

his particular mental condition that affects whether his commitment is

reasonably related to the goal of accurately evaluating his likelihood of attaining

competence so he can be tried. Only in those cases where detention is in fact

reasonably related to this objective does the State’s interest justify depriving the

defendant of his strong liberty interest. See, e.g., Salerno, 481 U. S. at 750-751

(upholding the federal Bail Reform Act against a due process challenge,

emphasizing that the statute allows for pretrial detention of defendants without

bond only under “narrow circumstances,” which the government must

demonstrate exist in the particular case in a way that convinces a neutral

decision-maker); Jackson, 406 U. S. at 738 (noting with disapproval that there

were no formal commitment proceedings addressing Jackson’s own ability to

function in society, society’s interest in his restraint, or the State’s ability to help

29 him attain competency through custodial care or compulsory treatment); Hood,

267 Ga. at 582-583 (holding that before a court revokes a defendant’s bond, due

process requires “a meaningful opportunity to be heard,” including the

presentation of evidence and findings by the court). Cf. Sell, 539 U. S. at 180-

181 (explaining that “[c]ourts . . . must consider the facts of the individual case

in evaluating the Government’s interest in prosecution,” and that an indictee

who is incompetent to stand trial may be involuntarily medicated only if the

proposed medication “will significantly further [the] state interests” and “is

necessary to further those interests” (emphasis in original)). Neither the crime

of which a defendant is accused — a crime of which he must constitutionally be

presumed innocent — nor the finding of incompetency to stand trial is itself a

sufficient ground to detain a citizen. See Jackson, 406 U. S. at 728 (explaining

that “pending criminal charges are insufficient to establish [dangerousness]”);

O’Connor v. Donaldson, 422 U. S. 563, 575 (95 SCt 2486, 45 LE2d 396) (1975)

(“A finding of ‘mental illness’ alone cannot justify a State’s locking a person up

against his will.”).

In fact, in some cases the evidence presented at the competency hearing

may indicate that confinement will not serve the government’s purpose of

30 accurately evaluating the defendant’s likelihood to attain competency. For

example, the facility in which the defendant would be confined may not have the

means to effectively care for or communicate with the defendant. See, e.g.,

Jackson, 406 U. S. at 719 (noting that a deaf-school interpreter “testified that

Indiana had no facilities that could help someone as badly off as Jackson to

learn minimal communication skills”). Or the department doctor who initially

evaluated the defendant’s competency to stand trial may be able to conclude

with reasonable medical certainty that the defendant will not be able to attain

competence. See, e.g., Dalasta, 856 F3d at 551 (noting that two doctors who

evaluated the defendant told the court that his incompetence was caused by the

removal of part of his brain and he therefore would never regain competency);

Filippi, 211 F3d at 650 (noting that medical evidence at the competency hearing

showed that the defendant suffered from irreversible vascular dementia and

could not be restored to competency); Coats, 3 NE3d at 529-530 (noting that the

defendant had been diagnosed with Alzheimer’s disease and the court concluded

at an earlier hearing that he could not be restored to competency). In these

cases, at least without a showing by the State and a finding by the court that the

proposed examination and treatment of the defendant in a confined setting has

31 a realistic possibility of altering the status quo, commitment serves no legitimate

purpose at all, and so does not justify the deprivation of the defendant’s

liberty.17

We acknowledge, however, that in many cases the constant observation

and increased control afforded by a defendant’s detention in a department

facility may reasonably promote the government’s purpose of accurate

evaluation. For example, in cases where the doctor or the court itself suspects

that the defendant may be feigning or exaggerating symptoms to avoid trial, or

where the defendant’s diagnosis is truly uncertain or holds the potential for

improvement rather than stasis or deterioration, close and extended observation

and control may be beneficial to the department’s doctors. But the existence of

such cases does not justify automatic detention for all defendants in Georgia’s

courts who are accused of a violent crime and found incompetent to stand trial.

(b) Because the nature of automatic commitment for all those

17 In this respect, although we will let the trial court decide in the first instance whether Carr’s individual circumstances justify confinement for evaluation, we note that in the report on which the trial court relied in finding Carr incompetent to stand trial, the department’s doctor concluded that “there is a strong probability that [Carr] would not be able to be restored to competency” and, further, that any attempts to restore competency should happen “in a community setting rather than in a psychiatric facility.”

32 defendants does not bear a reasonable relation to the State’s purpose of

accurately determining the restorability of individual defendants’ competence

to stand trial, that aspect of OCGA § 17-7-130 (c) violates due process when

applied to defendants who have been deprived of their liberty based solely on

that statutory provision. In such cases, the trial court should proceed as it does

in determining how to evaluate mentally incompetent defendants accused of

nonviolent offenses. To ensure that the nature of commitment to the department

is appropriate for the particular defendant, the court should consider all relevant

evidence and make a finding as to whether the evaluation required by OCGA §

17-7-130 (c) should be conducted on an inpatient or outpatient basis. A

defendant who is not already lawfully detained should be committed to the

department only if the court finds that such confinement is reasonably related

to the purpose of accurately evaluating whether that particular defendant can

attain competency. A hearing on this issue should be held at the same time or

promptly after the court initially determines the defendant’s competency to be

tried. To the extent the prosecutor or the defendant wishes to present or contest

evidence that speaks to the detention determination, that should be permitted.

If the court determines that inpatient evaluation is not appropriate for a mentally

33 incompetent defendant charged with a violent offense and not already detained

for another, lawful reason, then the portion of OCGA § 17-7-130 (c) requiring

commitment of that defendant to the physical custody of the department cannot

be applied as a matter of constitutional due process.18

6. Conclusion

For these reasons, the part of the trial court’s judgment concluding that

OCGA § 17-7-130 (c) is constitutional is reversed, and the part of the judgment

ordering Carr to be delivered to the custody of the department for evaluation is

vacated. As noted above in footnote 3, the trial court’s unchallenged finding

that Carr is incompetent to stand trial is affirmed. On remand, the trial court

should proceed in accordance with this opinion, including exercising discretion

in deciding whether Carr should be committed to the department’s custody for

evaluation or should be evaluated on an outpatient basis.19

18 We encourage the General Assembly to amend OCGA § 17-7-130 (c) to incorporate these constitutional requirements, so that those reading that statutory provision in the Georgia Code will not be misled as to its constitutional application. 19 The record does not show Carr’s status after he filed his application for interlocutory appeal more than 11 months ago. We note that although the application did not act as supersedeas of the trial court’s order, it appears that Carr’s notice of appeal filed last August 11 should have done so. See OCGA § 5-6-34 (b) (explaining that after an application for interlocutory appeal is granted, the applicant may file a notice of appeal as provided in OCGA § 5-6-37, which acts as a supersedeas). See also OCGA § 5-6-45 (“In all criminal cases, the notice of appeal filed as provided

34 Judgment affirmed in part, reversed in part, and vacated in part, and case

remanded with direction. All the Justices concur.

Decided June 18, 2018.

OCGA § 17-7-130; constitutional question. Catoosa Superior Court.

Before Judge Van Pelt.

David J. Dunn, Jr., Amber L. Connell, for appellant.

Herbert E. Franklin, Jr., District Attorney, Clayton M. Fuller, Assistant

District Attorney, for appellee.

Christopher M. Carr, Attorney General, Patricia B. Attaway Burton,

Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General,

Sarah Hawkins Warren, Solicitor-General, Ross W. Bergethon, Deputy

Solicitor-General, amici curiae.

in Code Section 5-6-37 . . . shall serve as supersedeas in all cases . . . where the defendant is admitted to bail.”); State v. Vansant, 208 Ga. App. 772, 776 (431 SE2d 708) (1993) (explaining “the general rule in both civil and criminal cases that the filing of a notice of appeal serves as supersedeas”), reversed in part on other grounds, Vansant v. State, 264 Ga. 319 (443 SE2d 474) (1994). Thus, it may be that Carr should have been returned to release on bond at that point. The trial court should consider this issue when proceeding on remand. The court should also consider that, if Carr has been held in custody based solely on OCGA § 17-7-130 (c) during the pendency of this appeal, the duration of his detention may be unreasonable as discussed in Division 4 of this opinion.