§876b Art. 76b. Lack of Mental Capacity or Mental Responsibility: Commitment of Accused for Examination and Treatment

Summary

When a service member cannot understand the trial or cannot help with their defense because of a mental disease or defect, the commander must send them into the custody of the Attorney General. The Attorney General must follow 18 U.S.C. 4241(d) for hospitalization. If the person is still not fit after that period, 18 U.S.C. 4246 applies. When the hospital director finds the person able to stand trial, the director must tell the Attorney General, the convening authority, and the person’s lawyer. The convening authority must promptly take the person back unless the person is no longer under military law. The hospital may hold the person up to 30 more days after giving notice. When 18 U.S.C. 4246 is used here, any court references mean the convening authority, except if the person is no longer under military law, then the U.S. district court where the person is held is treated as the committing court. If a service member is found not guilty only because of lack of mental responsibility, the court-martial must commit them to a suitable facility until rules allow release. The court must hold the mental-condition hearing described in 18 U.S.C. 4243(c), and parts (b) and (d) of that section apply. The hearing results go to the convening authority. If the court cannot find that release poses no substantial risk under 4243(d), the convening authority may commit the person to the Attorney General and the Attorney General must act under 4243(e). Sections 4243(f), (g), and (h) apply, with the district court where the person is held treated as the committing court. Generally, 18 U.S.C. 4247 applies here, but the reference to 3006A does not apply to court-martial hearings. Chapter 313 of title 18 applies as stated here. If the person’s military status ends while they are in AG custody, hospitalized, or on conditional release, the rules for people no longer under military law still keep applying.