UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Bazelon, Chief Judge, Wilbur K. Miller, Senior Circuit Judge, and Tamm, Circuit Judge.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BAZELON
This appeal challenges the legality of a sentence to treatment under Title II of the Narcotic Addict Rehabilitation Act of 1966, 80 Stat. 1442-1444 (1966), 18 U.S.C. §§ 4251-4255 (Supp. III, 1968).
Appellant Ida Watson was indicted three times within seven weeks in the spring of 1967 -- first on four counts of forgery and uttering, then on a count each of larceny and housebreaking, then on four more counts of larceny and housebreaking. In September, 1967, she entered guilty pleas to one count of uttering and to the housebreaking count of the second indictment. Apparently in exchange, the Government promised to dismiss the third indictment and the remaining counts in the other two indictments at the time of sentencing. The bargain was kept, and appellant expressly concedes that her guilty pleas were voluntarily and intelligently made.
When she appeared for sentencing, the court granted her request for preliminary commitment for examination under the Rehabilitation Act, to determine whether she was a treatable addict. See 18 U.S.C. § 4252. Her probation report revealed that she had no criminal record prior to her involvement with narcotics, but had been driven to theft in order to support her $75 per day habit. As the 24-year-old mother of four children, she seemed an obvious candidate for the therapeutic disposition she sought. When the Chief of the National Institute of Mental Health Clinical Research Center in Lexington, Kentucky, reported her likely to be rehabilitated through treatment, the stage was set for a happy conjunction of societal and humanitarian interests.
This rare harmony was shattered when appellant announced that she no longer wished to be committed for treatment. Though she could have been sentenced to as many as 25 years in prison for her two convictions, whereas the maximum commitment term under the Rehabilitation Act is 10 years (and the minimum term of confinement only 6 months), she said she would rather take her chances on a short jail sentence (or, presumably, probation) than go to Lexington for treatment; she did not want to be so far from her children for so long. Her attorney attempted to dissuade her, to no avail. But the court saw no advantage to her or to her children, either in sending her to jail or in releasing her, fully addicted, on probation. Accordingly, he ordered her committed. Appellant now seeks vacation of this order and a remand for sentencing under the appropriate criminal statutes, arguing that the court could not commit her over her objection and that, in any event, she was not an "eligible offender" within the meaning of the Act. I
Appellant's contention that commitment under Title II requires her consent is without merit. Unlike Title I of the Act, *fn1 which permits some addicted defendants to opt for commitment in lieu of prosecution, *fn2 Title II makes no provision for an election by the defendant. It provides
because prior felony charges were pending against her at the time she was sentenced.
Under 18 U.S.C. § 4251(f) (1), "an offender who is convicted of a crime of violence" is not "an eligible offender" within the meaning of Title II. Under § 4251(b), "burglary or housebreaking in the nighttime" is a crime of violence. Appellant did her housebreaking in the afternoon. That, one might think, would be that. Appellant urges that Congress had in mind the commonlaw offense of burglary in the nighttime; and since District of Columbia law now indiscriminately lumps burglaries, day and night, into the single felony of "housebreaking" around the clock, *fn4 she says all housebreakings must be regarded as "crimes of violence" for purposes of the Act. We disagree. The legislative history shows that the original House version of the Act excluded from eligibility all housebreakers, *fn5 while the Senate version excluded none. *fn6 The final compromise makes housebreaking a crime of violence "only if committed in the nighttime." *fn7 Congress evidently thought diurnal intrusions committed by an addict less serious offenses for purposes of rehabilitation than their nocturnal counterparts. We do not think it is prevented from reaching that conclusion because it declined to write the daytime-nighttime distinction into the general housebreaking statute for the District of Columbia.
Under 18 U.S.C. § 4251(f) (3), an offender is ineligible for the provisions of Title II if there is pending against him "a prior charge of a felony which has not been finally determined . . .." Since the court did not dismiss the other charges until it had committed appellant for examination, appellant says these charges were still "pending."
Appellant's commitment for examination and the dismissal of the remaining charges were ordered on the same day in the same proceeding and virtually in the same judicial breath. It is hardly to be supposed that Congress intended the legality of a commitment to turn on the question of whether the court dismissed and then committed or committed and then dismissed. No conceivable substantive interests could be served by splitting that hair.
Congress might, however, have intended to exclude offenders who have undetermined charges pending at the time of their conviction or at the time of the dispositional proceeding. The Act withholds eligibility from offenders previously convicted of two or more felonies, *fn8 and the pending charge provision may have been similarly designed to weed out "hardened criminals," *fn9 identifiable by the number of their offenses. If so, Congress might not have wished to leave prosecutors discretion to confer eligibility by dismissing pending charges for reasons other than the insufficiency of the evidence.
It appears, however, that Congress specifically intended the prosecutor to have such discretion. The Report of the House Judiciary Committee on H.R. 9167, which with minor amendments became the ...