OCTOBER TERM, 1991
Syllabus
FOUCHA
v. LOUISIANA
CERTIORARI TO THE SUPREME COURT OF LOUISIANA No. 90-5844. Argued
November 4, 1991-Decided May 18, 1992
Under Louisiana law, a criminal defendant found not guilty by
reason of insanity may be committed to a psychiatric hospital. If a
hospital review committee thereafter recommends that the acquittee
be released, the trial court must hold a hearing to determine
whether he is dangerous to himself or others. If he is found to be
dangerous, he may be returned to the hospital whether or not he is
then mentally ill. Pursuant to this statutory scheme, a state court
ordered petitioner Foucha, an insanity acquittee, returned to the
mental institution to which he had been committed, ruling that he
was dangerous on the basis of,
inter alia, a doctor's
testimony that he had recovered from the drug induced psychosis
from which he suffered upon commitment and was "in good shape"
mentally; that he had, however, an antisocial personality, a
condition that is not a mental disease and is untreatable; that he
had been involved in several altercations at the institution; and
that, accordingly, the doctor would not "feel comfortable in
certifying that he would not be a danger to himself or to other
people." The State Court of Appeal refused supervisory writs, and
the State Supreme Court affirmed, holding, among other things, that
Jones v.
United States, 463 U. S. 354, did not
require Foucha's release and that the Due Process Clause of the
Fourteenth Amendment was not violated by the statutory provision
permitting confinement of an insanity acquittee based on
dangerousness alone.
Held: The judgment is reversed. 563 So. 2d 1138,
reversed.
JUSTICE WHITE delivered the opinion of the Court with respect to
Parts I and II, concluding that the Louisiana statute violates the
Due Process Clause because it allows an insanity acquittee to be
committed to a mental institution until he is able to demonstrate
that he is not dangerous to himself and others, even though he does
not suffer from any mental illness. Although
Jones, supra,
acknowledged that an insanity acquittee could be committed, the
Court also held that, as a matter of due process, he is entitled to
release when he has recovered his sanity or is no longer dangerous,
id., at 368, i.
e., he may be held as long as he is
both mentally ill and dangerous, but no longer. Here, since the
State does not contend that Foucha was mentally ill at the time of
the
72
Syllabus
trial court's hearing, the basis for holding him in a
psychiatric facility as an insanity acquittee has disappeared, and
the State is no longer entitled to hold him on that basis. There
are at least three difficulties with the State's attempt to
perpetuate his confinement on the basis of his antisocial
personality. First, even if his continued confinement were
constitutionally permissible, keeping him against his will in a
mental institution is improper absent a determination in civil
commitment proceedings of current mental illness and dangerousness.
Vitek v.
Jones, 445 U. S. 480, 492. Due
process requires that the nature of commitment bear some reasonable
relation to the purpose for which the individual is committed. See,
e. g., Jones v.
United States, supra, at 368. Second,
if he can no longer be held as an insanity acquittee in a mental
hospital, he is entitled to constitutionally adequate procedures to
establish the grounds for his confinement.
Jackson v.
Indiana, 406
U. S. 715. Third, the substantive component of the Due Process
Clause bars certain arbitrary, wrongful government actions
regardless of the fairness of the procedures used to implement
them.
Zinermon v.
Burch, 494 U. S. 113, 125. Although
a State may imprison convicted criminals for the purposes of
deterrence and retribution, Louisiana has no such interest here,
since Foucha was not convicted and may not be punished.
Jones, 463 U. S., at 369. Moreover, although the State may
confine a person if it shows by clear and convincing evidence that
he is mentally ill and dangerous,
id., at 362, Louisiana has
not carried that burden here. Furthermore,
United States v.
Salerno, 481
U. S. 739-in which this Court held that in certain narrow
circumstances pretrial detainees who pose a danger to others or the
community may be subject to limited confinement-does not save the
state statute. Unlike the sharply focused statutory scheme at issue
in
Salerno, the Louisiana scheme is not carefully limited.
Pp. 75-85.
WHITE, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I and II, in which
BLACKMUN, STEVENS, O'CONNOR, and SOUTER, JJ., joined, and an
opinion with respect to Part III, in which BLACKMUN, STEVENS, and
SOUTER, JJ., joined. O'CONNOR, J., filed an opinion concurring in
part and concurring in the judgment,
post, p. 86. KENNEDY,
J., filed a dissenting opinion, in which REHNQUIST, C. J., joined,
post, p. 90. THOMAS, J., filed a dissenting opinion, in
which REHNQUIST, C. J., and SCALIA, J., joined,
post, p.
102.
James P. Manasseh argued the cause for petitioner. With
him on the briefs was
Martin E. Regan, Jr.
73
Pamela S.
Moran argued the cause for respondent.
With her on the brief was
Harry F. Connick. *
JUSTICE WHITE delivered the opinion of the Court, except as to
Part III.
When a defendant in a criminal case pending in Louisiana is
found not guilty by reason of insanity, he is committed to a
psychiatric hospital unless he proves that he is not dangerous.
This is so whether or not he is then insane. After commitment, if
the acquittee or the superintendent begins release proceedings, a
review panel at the hospital makes a written report on the
patient's mental condition and whether he can be released without
danger to himself or others. If release is recommended, the court
must hold a hearing to determine dangerousness; the acquittee has
the burden of proving that he is not dangerous. If found to be
dangerous, the acquittee may be returned to the mental institution
whether or not he is then mentally ill. Petitioner contends that
this scheme denies him due process and equal protection because it
allows a person acquitted by reason of insanity to be committed to
a mental institution until he is able to demonstrate that he is not
dangerous to himself and others, even though he does not suffer
from any mental illness.
I
Petitioner Terry Foucha was charged by Louisiana authorities
with aggravated burglary and illegal discharge of a firearm. Two
medical doctors were appointed to conduct a pretrial examination of
Foucha. The doctors initially reported, and the trial court
initially found, that Foucha lacked mental capacity to proceed,
App. 8-9, but four months later the trial court found Foucha
competent to stand trial,
id., at 4-5. The doctors reported
that Foucha was unable to distin-
*Briefs of
amici curiae urging reversal were filed for
the American Orthopsychiatric Association et al. by
James W
Ellis and
Barbara E. Bergman; and for the American
Psychiatric Association by
Joel I. Klein.
74
guish right from wrong and was insane at the time of the
offense. 1 On October 12, 1984, the trial court ruled that Foucha
was not guilty by reason of insanity, finding that he "is unable to
appreciate the usual, natural and probable consequences of his
acts; that he is unable to distinguish right from wrong; that he is
a menace to himself and others; and that he was insane at the time
of the commission of the above crimes and that he is presently
insane."
Id., at 6. He was committed to the East Feliciana
Forensic Facility until such time as doctors recommend that he be
released, and until further order of the court. In 1988, the
superintendent of Feliciana recommended that Foucha be discharged
or released. A three-member panel was convened at the institution
to determine Foucha's current condition and whether he could be
released or placed on probation without being a danger to others or
himself. On March 21, 1988, the panel reported that there had been
no evidence of mental illness since admission and recommended that
Foucha be conditionally discharged.2 The trial judge appointed a
two-member sanity commission made up of the same two doctors who
had conducted the pretrial examination. Their written report stated
that Foucha "is presently in remission from mental illness [but]
[w]e cannot certify that he would not constitute
1 Louisiana law provides: "If the circumstances indicate that
because of a mental disease or mental defect the offender was
incapable of distinguishing between right and wrong with reference
to the conduct in question, the offender shall be exempt from
criminal responsibility." La. Rev. Stat. Ann. § 14:14 (West 1986).
JUSTICE KENNEDY disregards the fact that the State makes no claim
that Foucha was criminally responsible or that it is entitled to
punish Foucha as a criminal.
2 The panel unanimously recommended that petitioner be
conditionally discharged with recommendations that he (1) be placed
on probation; (2) remain free from intoxicating and mind-altering
substances; (3) attend a substance abuse clinic on a regular basis;
(4) submit to regular and random urine drug screening; and (5) be
actively employed or seeking employment. App. 10-11.
Although the panel recited that it was charged with determining
dangerousness, its report did not expressly make a finding in that
regard.
75
a menace to himself or others if released."
Id., at 12.
One of the doctors testified at a hearing that upon commitment
Foucha probably suffered from a drug induced psychosis but that he
had recovered from that temporary condition; that he evidenced no
signs of psychosis or neurosis and was in "good shape" mentally;
that he had, however, an antisocial personality, a condition that
is not a mental disease and that is untreatable. The doctor also
testified that Foucha had been involved in several altercations at
Feliciana and that he, the doctor, would not "feel comfortable in
certifying that [Foucha] would not be a danger to himself or to
other people."
Id., at 18.
After it was stipulated that the other doctor, if he were
present, would give essentially the same testimony, the court ruled
that Foucha was dangerous to himself and others and ordered him
returned to the mental institution. The Court of Appeal refused
supervisory writs, and the State Supreme Court affirmed, holding
that Foucha had not carried the burden placed upon him by statute
to prove that he was not dangerous, that our decision in
Jones v.
United States, 463 U. S. 354 (1983), did not
require Foucha's release, and that neither the Due Process Clause
nor the Equal Protection Clause was violated by the statutory
provision permitting confinement of an insanity acquittee based on
dangerousness alone.
Because the case presents an important issue and was decided by
the court below in a manner arguably at odds with prior decisions
of this Court, we granted certiorari. 499 U. S. 946 (1991).
II
Addington v.
Texas, 441 U. S. 418 (1979),
held that to commit an individual to a mental institution in a
civil proceeding, the State is required by the Due Process Clause
to prove by clear and convincing evidence the two statutory
preconditions to commitment: that the person sought to be committed
is mentally ill and that he requires hospitalization for his
76
own welfare and protection of others. Proof beyond a reasonable
doubt was not required, but proof by preponderance of the evidence
fell short of satisfying due process.3
When a person charged with having committed a crime is found not
guilty by reason of insanity, however, a State may commit that
person without satisfying the
Addington burden with respect
to mental illness and dangerousness.
Jones v.
United
States, supra. Such a verdict, we observed in
Jones,
"establishes two facts: (i) the defendant committed an act that
constitutes a criminal offense, and (ii) he committed the act
because of mental illness,"
id., at 363, an illness that the
defendant adequately proved in this context by a preponderance of
the evidence. From these two facts, it could be properly inferred
that at the time of the verdict, the defendant was still mentally
ill and dangerous and hence could be committed.4
3 JUSTICE THOMAS in dissent complains that Foucha should not be
released based on psychiatric opinion that he is not mentally ill
because such opinion is not sufficiently precise-because psychiatry
is not an exact science and psychiatrists widely disagree on what
constitutes a mental illness. That may be true, but such opinion is
reliable enough to permit the courts to base civil commitments on
clear and convincing medical evidence that a person is mentally ill
and dangerous and to base release decisions on qualified testimony
that the person is no longer mentally ill or dangerous. It is also
reliable enough for the State not to punish a person who by a
preponderance of the evidence is found to have been insane at the
time he committed a criminal act, to say nothing of not trying a
person who is at the time found incompetent to understand the
proceedings. And more to the point, medical predictions of
dangerousness seem to be reliable enough for JUSTICE THOMAS to
permit the State to continue to hold Foucha in a mental
institution, even where the psychiatrist would say no more than
that he would hesitate to certify that Foucha would not be
dangerous to himself or others.
4JUSTICE KENNEDY'S assertion that we overrule the holding of
Jones described in the above paragraph is fanciful at best.
As that paragraph plainly shows, we do not question and fully
accept that insanity acquittees may be initially held without
complying with the procedures applicable to civil committees. As is
evident from the ensuing paragraph of the text, we are also true to
the further holding of
Jones that both JUSTICE THOMAS
77
We held, however, that "[t]he committed acquittee is entitled to
release when he has recovered his sanity or is no longer
dangerous,"
id., at 368; i.
e., the acquittee may be
held as long as he is both mentally ill and dangerous, but no
longer. We relied on
O'Connor v.
Donaldson, 422 U. S. 563 (1975),
which held as a matter of due process that it was unconstitutional
for a State to continue to confine a harmless, mentally ill person.
Even if the initial commitment was permissible, "it could not
constitutionally continue after that basis no longer existed."
Id., at 575. In the summary of our holdings in our opinion
we stated that "the Constitution permits the Government, on the
basis of the insanity judg-
and JUSTICE KENNEDY reject: that the period of time during which
an insanity acquittee may be held in a mental institution is not
measured by the length of a sentence that might have been imposed
had he been convicted; rather, the acquittee may be held until he
is either not mentally ill or not dangerous. Both Justices would
permit the indefinite detention of the acquittee, although the
State concedes that he is not mentally ill and although the doctors
at the mental institution recommend his release, for no reason
other than that a psychiatrist hesitates to certify that the
acquittee would not be dangerous to himself or others.
JUSTICE KENNEDY asserts that we should not entertain the
proposition that a verdict of not guilty by reason of insanity
differs from a conviction.
Post, at 94.
Jones,
however, involved a case where the accused had been "found, beyond
a reasonable doubt, to have committed a criminal act." 463 U. S.,
at 364. We did not find this sufficient to negate any difference
between a conviction and an insanity acquittal. Rather, we observed
that a person convicted of crime may of course be punished. But
"[d]ifferent considerations underlie commitment of an insanity
acquittee. As he was not convicted, he may not be punished."
Id., at 369.
JUSTICE KENNEDY observes that proof beyond reasonable doubt of
the commission of a criminal act permits a State to incarcerate and
hold the offender on any reasonable basis. There is no doubt that
the States have wide discretion in determining punishment for
convicted offenders, but the Eighth Amendment ensures that
discretion is not unlimited. The Justice cites no authority, but
surely would have if it existed, for the proposition that a
defendant convicted of a crime and sentenced to a term of years may
nevertheless be held indefinitely because of the likelihood that he
will commit other crimes.
78
ment, to confine him to a mental institution until such time as
he has regained his sanity or is no longer a danger to himself or
society."
Jones, 463 U. S., at 368, 370.5 The court below
was in error in characterizing the above language from
Jones
as merely an interpretation of the pertinent statutory law in the
District of Columbia and as having no constitutional significance.
In this case, Louisiana does not contend that Foucha was mentally
ill at the time of the trial court's hearing. Thus, the basis for
holding Foucha in a psychiatric facility as an insanity acquittee
has disappeared, and the State is no longer entitled to hold him on
that basis.
O'Connor, supra, at 574-575.
The State, however, seeks to perpetuate Foucha's confinement at
Feliciana on the basis of his antisocial personality which, as
evidenced by his conduct at the facility, the court found rendered
him a danger to himself or others. There are at least three
difficulties with this position. First, even if his continued
confinement were constitutionally permissible, keeping Foucha
against his will in a mental institution is improper absent a
determination in civil commitment proceedings of current mental
illness and dangerousness. In
Vitek v.
Jones,
445 U. S. 480
(1980), we held that a convicted felon serving his sentence has a
liberty interest, not extinguished by his confinement as a
criminal, in not being transferred to a mental institution and
hence classified as men-
5JUSTICE THOMAS, dissenting, suggests that there was no issue of
the standards for release before us in
Jones. The issue in
that case, however, was whether an insanity acquittee "must be
released because he has been hospitalized for a period longer than
he might have served in prison had he been convicted," 463 U. S.,
at 356; and in the course of deciding that issue in the negative,
we said that the detainee could be held until he was no longer
mentally ill or no longer dangerous, regardless of how long a
prison sentence might have been. We noted in footnote 11 that Jones
had not sought a release based on nonillness or nondangerousness,
but as indicated in the text, we twice announced the outside limits
on the detention of insanity acquittees. The Justice would "wish"
away this aspect of
Jones, but that case merely reflected
the essence of our prior decisions.
79
tally ill without appropriate procedures to prove that he was
mentally ill. "The loss of liberty produced by an involuntary
commitment is more than a loss of freedom from confinement."
Id., at 492. Due process requires that the nature of
commitment bear some reasonable relation to the purpose for which
the individual is committed.
Jones, supra, at 368;
Jackson v.
Indiana, 406 U. S. 715, 738
(1972). Here, according to the testimony given at the hearing in
the trial court, Foucha is not suffering from a mental disease or
illness. If he is to be held, he should not be held as a mentally
ill person. See
Jones, supra, at 368;
Jackson, supra,
at 738. Cf.
United States v.
Salerno, 481 U. S. 739, 747-748
(1987); Schall v.
Martin, 467 U. S. 253, 270
(1984).
Second, if Foucha can no longer be held as an insanity acquittee
in a mental hospital, he is entitled to constitutionally adequate
procedures to establish the grounds for his confinement.
Jackson v.
Indiana, supra, indicates as much. There,
a person under criminal charges was found incompetent to stand
trial and was committed until he regained his sanity. It was later
determined that nothing could be done to cure the detainee, who was
a deaf mute. The state courts refused to order his release. We
reversed, holding that the State was entitled to hold a person for
being incompetent to stand trial only long enough to determine if
he could be cured and become competent. If he was to be held
longer, the State was required to afford the protections
constitutionally required in a civil commitment proceeding. We
noted, relying on
Baxstrom v.
Herold, 383 U. S. 107 (1966),
that a convicted criminal who allegedly was mentally ill was
entitled to release at the end of his term unless the State
committed him in a civil proceeding. "'[T]here 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.'''
Jackson v.
Indiana, supra, at 724, quoting
Baxstrom, supra, at 111-112.
80
Third, "the Due Process Clause contains a substantive component
that bars certain arbitrary, wrongful government actions
'regardless of the fairness of the procedures used to implement
them.'"
Zinermon v.
Burch, 494 U. S. 113, 125
(1990). See also
Salerno, supra, at 746;
Daniels v.
Williams, 474
U. S. 327, 331 (1986). Freedom from bodily restraint has always
been at the core of the liberty protected by the Due Process Clause
from arbitrary governmental action.
Youngberg v.
Romeo, 457 U.
S. 307, 316 (1982). "It is clear that commitment for any
purpose constitutes a significant deprivation of liberty that
requires due process protection."
Jones, supra, at 361
(internal quotation marks omitted). We have always been careful not
to "minimize the importance and fundamental nature" of the
individual's right to liberty.
Salerno, supra, at 750.
A State, pursuant to its police power, may of course imprison
convicted criminals for the purposes of deterrence and retribution.
But there are constitutional limitations on the conduct that a
State may criminalize. See,
e. g., Brandenburg v.
Ohio, 395 U.
S. 444 (1969);
Robinson v.
California, 370 U. S. 660 (1962).
Here, the State has no such punitive interest. As Foucha was not
convicted, he may not be punished.
Jones, supra, at 369.
Here, Louisiana has by reason of his acquittal exempted Foucha from
criminal responsibility as La. Rev. Stat. Ann. § 14:14 (West 1986)
requires. See
The State may also confine a mentally ill person if it shows "by
clear and convincing evidence that the individual is mentally ill
and dangerous,"
Jones, 463 U. S., at 362. Here, the State
has not carried that burden; indeed, the State does not claim that
Foucha is now mentally ill.
We have also held that in certain narrow circumstances persons
who pose a danger to others or to the community may be subject to
limited confinement and it is on these cases, particularly
United States v.
Salerno, supra, that the State
relies in this case.
81
Salerno, unlike this case, involved pretrial detention.
We observed in
Salerno that the "government's interest in
preventing crime by arrestees is both legitimate and compelling,"
id., at 749, and that the statute involved there was a
constitutional implementation of that interest. The statute
carefully limited the circumstances under which detention could be
sought to those involving the most serious of crimes (crimes of
violence, offenses punishable by life imprisonment or death,
serious drug offenses, or certain repeat offenders),
id., at
747, and was narrowly focused on a particularly acute problem in
which the government interests are overwhelming,
id., at
750. In addition to first demonstrating probable cause, the
Government was required, in a "full-blown adversary hearing," to
convince a neutral decisionmaker by clear and convincing evidence
that no conditions of release can reasonably assure the safety of
the community or any person, i.
e., that the "arrestee
presents an identified and articulable threat to an individual or
the community."
Id., at 751. Furthermore, the duration of
confinement under the Bail Reform Act of 1984 (Act) was strictly
limited. The arrestee was entitled to a prompt detention hearing
and the maximum length of pretrial detention was limited by the
"stringent time limitations of the Speedy Trial Act."
Id.,
at 747. If the arrestee were convicted, he would be confined as a
criminal proved guilty; if he were acquitted, he would go free.
Moreover, the Act required that detainees be housed, to the extent
practicable, in a facility separate from persons awaiting or
serving sentences or awaiting appeal.
Id., at 747-748.
Salerno does not save Louisiana's detention of insanity
acquittees who are no longer mentally ill. Unlike the sharply
focused scheme at issue in
Salerno, the Louisiana scheme of
confinement is not carefully limited. Under the state statute,
Foucha is not now entitled to an adversary hearing at which the
State must prove by clear and convincing evidence that he is
demonstrably dangerous to the community. Indeed, the State need
prove nothing to justify continued de-
82
tention, for the statute places the burden on the detainee to
prove that he is not dangerous. At the hearing which ended with
Foucha's recommittal, no doctor or any other person testified
positively that in his opinion Foucha would be a danger to the
community, let alone gave the basis for such an opinion. There was
only a description of Foucha's behavior at Feliciana and his
antisocial personality, along with a refusal to certify that he
would not be dangerous. When directly asked whether Foucha would be
dangerous, Dr. Ritter said only, "I don't think I would feel
comfortable in certifying that he would not be a danger to himself
or to other people." App. 18. This, under the Louisiana statute,
was enough to defeat Foucha's interest in physical liberty. It is
not enough to defeat Foucha's liberty interest under the
Constitution in being freed from indefinite confinement in a mental
facility.
Furthermore, if Foucha committed criminal acts while at
Feliciana, such as assault, the State does not explain why its
interest would not be vindicated by the ordinary criminal processes
involving charge and conviction, the use of enhanced sentences for
recidivists, and other permissible ways of dealing with patterns of
criminal conduct. These are the normal means of dealing with
persistent criminal conduct. Had they been employed against Foucha
when he assaulted other inmates, there is little doubt that if then
sane he could have been convicted and incarcerated in the usual
way.
It was emphasized in
Salerno that the detention we found
constitutionally permissible was strictly limited in duration. 481
U. S., at 747; see also
Schall, 467 U. S., at 269. Here, in
contrast, the State asserts that because Foucha once committed a
criminal act and now has an antisocial personality that sometimes
leads to aggressive conduct, a disorder for which there is no
effective treatment, he may be held indefinitely. This rationale
would permit the State to hold indefinitely any other insanity
acquittee not mentally ill who could be shown to have a personality
disorder that may lead to criminal conduct. The same would be true
of any con-
83
victed criminal, even though he has completed his prison term.
It would also be only a step away from substituting confinements
for dangerousness for our present system which, with only narrow
exceptions and aside from permissible confinements for mental
illness, incarcerates only those who are proved beyond reasonable
doubt to have violated a criminal law.
"In our society liberty is the norm, and detention prior to
trial or without trial is the carefully limited exception."
United States v.
Salerno, supra, at 755. The narrowly
focused pretrial detention of arrestees permitted by the Bail
Reform Act was found to be one of those carefully limited
exceptions permitted by the Due Process Clause. We decline to take
a similar view of a law like Louisiana's, which permits the
indefinite detention of insanity acquittees who are not mentally
ill but who do not prove they would not be dangerous to
others.6
6 JUSTICE THOMAS' dissent firmly embraces the view that the
State may indefinitely hold an insanity acquittee who is found by a
court to have been cured of his mental illness and who is unable to
prove that he would not be dangerous. This would be so even though,
as in this case, the court's finding of dangerousness is based
solely on the detainee's antisocial personality that apparently has
caused him to engage in altercations from time to time. JUSTICE
THOMAS, however, does not challenge the holding of our cases that a
convicted criminal may not be held as a mentally ill person without
following the requirements for civil commitment, which would not
permit further detention based on dangerousness alone. Yet it is
surely strange to release sane but very likely dangerous persons
who have committed a crime knowing precisely what they were doing
but continue to hold indefinitely an insanity detainee who
committed a criminal act at a time when, as found by a court, he
did not know right from wrong. JUSTICE THOMAS' rationale for
continuing to hold the insanity acquittee would surely justify
treating the convicted felon in the same way, and if put to it, it
appears that he would permit it. But as indicated in the text, this
is not consistent with our present system of justice.
JUSTICE THOMAS relies heavily on the American Law Institute's
(ALl) Model Penal Code and Commentary. However, his reliance on the
Model Code is misplaced and his quotation from the Commentary is
importantly incomplete. JUSTICE THOMAS argues that the Louisiana
statute follows
84
Opinion of WHITE, J.
III
It should be apparent from what has been said earlier in this
opinion that the Louisiana statute also discriminates
"the current provisions" of the Model Penal Code, but he fails
to mention that § 4.08 is "current" only in the sense that the
Model Code has not been amended since its approval in 1962, and
therefore fails to incorporate or reflect substantial developments
in the relevant decisional law during the intervening three
decades. Thus, although this is nowhere noted in the dissent, the
Explanatory Notes expressly concede that related and similarly
"current" provisions of Article 4 are unconstitutional. See,
e. g., ALl, Model Penal Code §4.06(2), Explanatory
Note (1985) (noting that § 4.06(2), permitting indefinite
commitment of a mentally incompetent defendant without the finding
required for civil commitment, is unconstitutional in light of
Jackson v.
Indiana, 406 U. S. 715 (1972), and
other decisions of this Court). Nor indeed does JUSTICE THOMAS
advert to the 1985 Explanatory Note to §4.08 itself, even though
that note directly questions the constitutionality of the provision
that he so heavily relies on; it acknowledges, as JUSTICE THOMAS
does not, that "it is now questionable whether a state may use the
single criterion of dangerousness to grant discharge if it employs
a different standard for release of persons civilly committed."
JUSTICE THOMAS also recites from the Commentary regarding § 4.08.
However, the introductory passage that JUSTICE THOMAS quotes
prefaces a more important passage that he omits. After explaining
the rationale for the questionable provision, the Commentary
states:
"Constitutional doubts ... exist about the criterion of
dangerousness. If a person committed civilly must be released when
he is no longer suffering mental illness, it is questionable
whether a person acquitted on grounds of mental disease or defect
excluding responsibility can be kept in custody solely on the
ground that he continues to be dangerous."
Id., §4.08,
Comment 3, p. 260. Thus, while JUSTICE THOMAS argues that the
Louisiana statute is not a relic of a bygone age, his principal
support for this assertion is a 30-year-old provision of the Model
Penal Code whose constitutionality has since been openly questioned
by the ALl reporters themselves.
Similarly unpersuasive is JUSTICE THOMAS' claim regarding the
number of States that allow confinement based on dangerousness
alone. First, this assertion carries with it an obvious but
unacknowledged corollarythe vast majority of States do not allow
confinement based on dangerousness alone. Second, JUSTICE THOMAS'
description of these state statutes also is importantly incomplete.
Even as he argues that a scheme of confinement based on
dangerousness alone is not a relic of a bygone age, JUSTICE THOMAS
neglects to mention that two of the statutes he relies
85
against Foucha in violation of the Equal Protection Clause of
the Fourteenth Amendment.
Jones established that insanity
acquittees may be treated differently in some respects from those
persons subject to civil commitment, but Foucha, who is not now
thought to be insane, can no longer be so classified. The State
nonetheless insists on holding him indefinitely because he at one
time committed a criminal act and does not now prove he is not
dangerous. Louisiana law, however, does not provide for similar
confinement for other classes of persons who have committed
criminal acts and who cannot later prove they would not be
dangerous. Criminals who have completed their prison terms, or are
about to do so, are an obvious and large category of such persons.
Many of them will likely suffer from the same sort of personality
disorder that Foucha exhibits. However, state law does not allow
for their continuing confinement based merely on dangerousness.
Instead, the State controls the behavior of these similarly
situated citizens by relying on other means, such as punishment,
deterrence, and supervised release.
on have been amended, as JUSTICE O'CONNOR notes. Nor does
JUSTICE THOMAS acknowledge that at least two of the other statutes
he lists as permitting confinement based on dangerousness alone
have been given a contrary construction by highest state courts,
which have found that the interpretation for which JUSTICE THOMAS
cites them would be impermissible. See
State v.
Fields, 77 N. J. 282, 390 A. 2d 574 (1978);
In re
Lewis, 403 A. 2d 1115, 1121 (Del. 1979), quoting
Mills
v.
State, 256 A. 2d 752, 757, n. 4 (Del. 1969) ("By
necessary implication, the danger referred to must be construed to
relate to mental illness for the reason that dangerousness without
mental illness could not be a valid basis for indeterminate
confinement in the State hospital"). See also ALl, Model Penal
Code,
supra, at 260 (although provisions may on their face
allow for confinement based on dangerousness alone, in virtually
all actual cases the questions of dangerousness and continued
mental disease are likely to be closely linked). As the widespread
rejection of the standard for confinement that JUSTICE THOMAS and
JUSTICE KENNEDY argue for demonstrates, States are able to protect
both the safety of the public and the rights of the accused without
challenging foundational principles of American criminal justice
and constitutional law.
86
Opinion of O'CONNOR, J.
Freedom from physical restraint being a fundamental right, the
State must have a particularly convincing reason, which it has not
put forward, for such discrimination against insanity acquittees
who are no longer mentally ill.
Furthermore, in civil commitment proceedings the State must
establish the grounds of insanity and dangerousness permitting
confinement by clear and convincing evidence.
Addington, 441
U. S., at 425-433. Similarly, the State must establish insanity and
dangerousness by clear and convincing evidence in order to confine
an insane convict beyond his criminal sentence, when the basis for
his original confinement no longer exists. See
Jackson, 406
U. S., at 724;
Baxstrom, 383 U. S., at 111-112. Cf.
Humphrey v.
Cady, 405 U. S. 504, 510-511 (1972).
However, the State now claims that it may continue to confine
Foucha, who is not now considered to be mentally ill, solely
because he is deemed dangerous, but without assuming the burden of
proving even this ground for confinement by clear and convincing
evidence. The court below gave no convincing reason why the
procedural safeguards against unwarranted confinement which are
guaranteed to insane persons and those who have been convicted may
be denied to a sane acquittee, and the State has done no better in
this Court.
For the foregoing reasons the judgment of the Louisiana Supreme
Court is reversed.
So ordered.
JUSTICE O'CONNOR, concurring in part and concurring in the
judgment.
Louisiana asserts that it may indefinitely confine Terry Foucha
in a mental facility because, although not mentally ill, he might
be dangerous to himself or to others if released. For the reasons
given in Part II of the Court's opinion, this contention should be
rejected. I write separately, however, to emphasize that the
Court's opinion addresses only the specific statutory scheme before
us, which broadly permits in-
87
definite confinement of sane insanity acquittees in psychiatric
facilities. This case does not require us to pass judgment on more
narrowly drawn laws that provide for detention of insanity
acquittees, or on statutes that provide for punishment of persons
who commit crimes while mentally ill.
I do not understand the Court to hold that Louisiana may never
confine dangerous insanity acquittees after they regain mental
health. Under Louisiana law, defendants who carry the burden of
proving insanity by a preponderance of the evidence will "escape
punishment," but this affirmative defense becomes relevant only
after the prosecution establishes beyond a reasonable doubt that
the defendant committed criminal acts with the required level of
criminal intent.
State v.
Marmillion, 339 So. 2d 788,
796 (La. 1976). Although insanity acquittees may not be
incarcerated as criminals or penalized for asserting the insanity
defense, see
Jones v.
United States, 463 U. S. 354, 368-369,
and n. 18 (1983), this finding of criminal conduct sets them apart
from ordinary citizens.
We noted in
Jones that a judicial determination of
criminal conduct provides "concrete evidence" of dangerousness.
Id., at 364. By contrast, "'[t]he only certain thing that
can be said about the present state of knowledge and therapy
regarding mental disease is that science has not reached finality
of judgment .... '"
Id., at 365, n. 13 (quoting
Greenwood v.
United States, 350 U. S. 366, 375
(1956)). Given this uncertainty, "courts should pay particular
deference to reasonable legislative judgments" about the
relationship between dangerous behavior and mental illness.
Jones, supra, at 365, n. 13. Louisiana evidently has
determined that the inference of dangerousness drawn from a verdict
of not guilty by reason of insanity continues even after a clinical
finding of sanity, and that judgment merits judicial deference.
It might therefore be permissible for Louisiana to confine an
insanity acquittee who has regained sanity if, unlike the situation
in this case, the nature and duration of detention
88
Opinion of O'CONNOR, J.
were tailored to reflect pressing public safety concerns related
to the acquittee's continuing dangerousness. See
United
States v.
Salerno, 481 U. S. 739, 747-751
(1987);
Schall v.
Martin, 467 U. S. 253, 264-271
(1984);
Jackson v.
Indiana, 406 U. S. 715, 738
(1972). Although the dissenters apparently disagree, see
post, at 100 (opinion of KENNEDY, J.);
post, at 125
(opinion of THOMAS, J.), I think it clear that acquittees could not
be confined as mental patients absent some medical justification
for doing so; in such a case the necessary connection between the
nature and purposes of confinement would be absent. See
Vitek v.
Jones, 445 U. S. 480, 491-494
(1980) (discussing infringements upon liberty unique to commitment
to a mental hospital);
Jones, supra, at 384-385 (Brennan,
J., dissenting) (same). Nor would it be permissible to treat all
acquittees alike, without regard for their particular crimes. For
example, the strong interest in liberty of a person acquitted by
reason of insanity but later found sane might well outweigh the
governmental interest in detention where the only evidence of
dangerousness is that the acquittee committed a nonviolent or
relatively minor crime. Cf.
Salerno, supra, at 750 (interest
in pretrial detention is "overwhelming" where only individuals
arrested for "a specific category of extremely serious offenses"
are detained and "Congress specifically found that these
individuals are far more likely to be responsible for dangerous
acts in the community after arrest"). Equal protection principles
may set additional limits on the confinement of sane but dangerous
acquittees. Although I think it unnecessary to reach equal
protection issues on the facts before us, the permissibility of
holding an acquittee who is not mentally ill longer than a person
convicted of the same crimes could be imprisoned is open to serious
question.
The second point to be made about the Court's holding is that it
places no new restriction on the States' freedom to determine
whether, and to what extent, mental illness should excuse criminal
behavior. The Court does not indi-
89
cate that States must make the insanity defense available. See
Idaho Code § 18-207(a) (1987) (mental condition not a defense to
criminal charges); Mont. Code Ann. §46-14-102 (1991) (evidence of
mental illness admissible to prove absence of state of mind that is
an element of the offense). It likewise casts no doubt on laws
providing for prison terms after verdicts of "guilty but mentally
ill." See,
e. g., Del. Code Ann., Tit. 11, § 408(b)
(1987); Ill. Rev. Stat., ch. 38, , 1005-2-6 (1989); Ind. Code §
35-36-2-5 (Supp. 1991). If a State concludes that mental illness is
best considered in the context of criminal sentencing, the holding
of this case erects no bar to implementing that judgment.
Finally, it should be noted that the great majority of States
have adopted policies consistent with the Court's holding. JUSTICE
THOMAS claims that 11 States have laws comparable to Louisiana's,
see
post, at 112-113, n. 9, but even this number overstates
the case. Two of the States JUSTICE THOMAS mentions have already
amended their laws to provide for the release of acquittees who do
not suffer from mental illness but may be dangerous. See Cal. Penal
Code Ann. § 1026.2 (West Supp. 1992) (effective Jan. 1, 1994); Va.
Code Ann. § 19.2-182.5 (Supp. 1991) (effective July 1, 1992). Three
others limit the maximum duration of criminal commitment to reflect
the acquittee's specific crimes and hold acquittees in facilities
appropriate to their mental condition. See N. J. Stat. Ann. §§
2C:4-8(b)(3) (West 1982), 30:4-24.2 (West 1981); Wash. Rev. Code §§
10.77.020(3), 10.77.110(1) (1990); Wis. Stat. §§ 971.17(1), (3)(c)
(Supp. 1991). I do not understand the Court's opinion to render
such laws necessarily invalid.
Of the remaining six States, two do not condition commitment
upon proof of every element of a crime. Kan. Stat. Ann. §
22-3428(1) (Supp. 1990) ("A finding of not guilty by reason of
insanity shall constitute a finding that the acquitted person
committed an act constituting the offense charged ... , except that
the person did not possess the requisite
90
criminal intent"); Mont. Code Ann. § 46-14-301(1) (1991)
(allowing commitment of persons "found not guilty for the reason
that due to a mental disease or defect the defendant could not have
a particular state of mind that is an essential element of the
offense charged"). Such laws might well fail even under the
dissenters' theories. See
post, at 91-94 (KENNEDY, J.,
dissenting);
post, at 103 (THOMAS, J., dissenting).
Today's holding follows directly from our precedents and leaves
the States appropriate latitude to care for insanity acquittees in
a way consistent with public welfare. Accordingly, I concur in
Parts I and II of the Court's opinion and in the judgment of the
Court.
JUSTICE KENNEDY, with whom THE CHIEF JUSTICE joins,
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. I agree with
the Court's reaffirmation of this first premise. But I submit with
all respect that the majority errs in its failure to recognize that
the conditions for incarceration imposed by the State in this case
are in accord with legitimate and traditional state interests,
vindicated after full and fair procedures. The error results from
the majority's primary reliance on cases, such as
O'Connor
v.
Donaldson, 422 U. S. 563 (1975), and
Addington v.
Texas, 441 U. S. 418 (1979),
which define the due process limits for involuntary civil
commitment. The majority relies on these civil cases while
overruling without mention one of the holdings of our most recent
and significant precedent from the criminal context,
Jones
v.
United States, 463 U. S. 354 (1983).
This is a criminal case. It began one day when petitioner,
brandishing a .357 revolver, entered the home of a married couple,
intending to steal. Brief for Respondent 1. He
91
chased them out of their home and fired on police officers who
confronted him as he fled.
Id., at 1-2. Petitioner was
apprehended and charged with aggravated burglary and the illegal
use of a weapon in violation of La. Rev. Stat. Ann. §§ 14:60 and
14:94 (West 1986). 563 So. 2d 1138, 1138-1139 (La. 1990). There is
no question that petitioner committed the criminal acts charged.
Petitioner's response was to deny criminal responsibility based on
his mental illness when he committed the acts. He contended his
mental illness prevented him from distinguishing between right and
wrong with regard to the conduct in question.
Mental illness may bear upon criminal responsibility, as a
general rule, in either of two ways: First, it may preclude the
formation of
mens rea, if the disturbance is so profound
that it prevents the defendant from forming the requisite intent as
defined by state law; second, it may support an affirmative plea of
legal insanity. See W. LaFave & A. Scott, Jr., 1 Substantive
Criminal Law §4.1(b), pp. 429-430 (1986) (hereinafter LaFave &
Scott). Depending on the content of state law, the first
possibility may implicate the State's initial burden, under
In
re Winship, 397
U. S. 358, 364 (1970), to prove every element of the offense
beyond a reasonable doubt, while the second possibility does not.
Patterson v.
New York, 432 U. S. 197, 206
(1977);
Leland
The power of the States to determine the existence of criminal
insanity following the establishment of the underlying offense is
well established. In
Leland v.
Oregon, we upheld a
state law that required the defendant to prove insanity beyond a
reasonable doubt, observing that this burden had no effect on the
State's initial burden to prove every element of the underlying
criminal offense.
"[T]he burden of proof of guilt, and of all the necessary
elements of guilt, was placed squarely upon the State. As the jury
was told, this burden did not shift, but rested upon the State
throughout the trial, just as, ac-
92
cording to the instructions, appellant was presumed to be
innocent until the jury was convinced beyond a reasonable doubt
that he was guilty. The jurors were to consider separately the
issue of legal sanity
per se-an issue set apart from the
crime charged, to be introduced by a special plea and decided by a
special verdict."
Id., at 795-796 (footnotes omitted).
As then-JusTIcE REHNQUIST explained the reasoning of
Leland, "the existence or nonexistence of legal insanity
bears no necessary relationship to the existence or nonexistence of
the required mental elements of the crime."
Mullaney v.
Wilbur, 421 U.
S. 684, 706 (1975) (concurring opinion); see also
Patterson v.
New York, supra, at 206 (defense of
insanity considered only after the facts constituting the crime
have been proved beyond a reasonable doubt);
Rivera v.
Delaware, 429
U. S. 877 (1976) (dismissing challenge to a
Leland
instruction for want of a substantial federal question).
Louisiana law follows the pattern in
Leland with clarity
and precision. Pursuant to La. Code Crim. Proc. Ann., Art. 552
(West 1981), the petitioner entered a dual plea of not guilty and
not guilty by reason of insanity. The dual plea, which the majority
does not discuss or even mention, ensures that the
Winship
burden remains on the State to prove all the elements of the crime.
The Louisiana Supreme Court confirms this in a recent case
approving the following jury instruction on the defense of
insanity:
"'In this case the accused has entered a dual plea of not guilty
and not guilty by reason of insanity. As a consequence of such a
plea, you must first determine whether or not the accused committed
a crime [on which you have been instructed]. If you are convinced
beyond a reasonable doubt that the accused did commit any of these
crimes, anyone of these crimes, then you must proceed to a
determination of whether he was sane at the time the crime was
committed and thereby crimi-
93
nally responsible for committing it.'" State v.
Marmillion, 339 So. 2d 788, 796 (1976).
The State's burden is unaffected by an adjudication without
trial, such as occurred here, because state law requires the trial
court to determine, before accepting the plea, that there is a
factual basis for it. La. Code Crim. Proc. Ann., Art. 558.1 (West
Supp. 1992). There is no dispute that the trial court complied with
state law and made the requisite findings.
Compliance with the standard of proof beyond a reasonable doubt
is the defining, central feature in criminal adjudication, unique
to the criminal law.
Addington, 441 U. S., at 428. Its
effect is at once both symbolic and practical, as a statement of
values about respect and confidence in the criminal law,
Winship, 397 U. S., at 364, and an apportionment of risk in
favor of the accused,
id., at 369-372 (Harlan, J.,
concurring). We have often subjected to heightened due process
scrutiny, with regard to both purpose and duration, deprivations of
physical liberty imposed before a judgment is rendered under this
standard. See,
e. g., United States v.
Salerno,
481 U. S. 739,
750-751 (1987);
Jackson v.
Indiana, 406 U. S. 715, 738
(1972); cf.
Jones v.
United States, 463 U. S., at
363-364, and n. 12 ("The proof beyond a reasonable doubt that the
acquittee committed a criminal act distinguishes this case from
Jackson v.
Indiana, 406 U. S. 715 (1972) ....
In
Jackson there never was any affirmative proof that the
accused had committed criminal acts ... "). The same heightened due
process scrutiny does not obtain, though, once the State has met
its burden of proof and obtained an adjudication. It is well
settled that upon compliance with
In re Winship, the State
may incarcerate on any reasonable basis.
Chapman v.
United States, 500 U. S. 453, 465
(1991);
Williams v.
Illinois, 399 U. S. 235, 243
(1970).
As JUSTICE THOMAS observes in his dissent, the majority errs by
attaching "talismanic significance" to the fact that petitioner has
been adjudicated "not guilty by reason of in-
94
sanity."
Post, at 118, n. 13. A verdict of not guilty by
reason of insanity is neither equivalent nor comparable to a
verdict of not guilty standing alone. We would not allow a State to
evade its burden of proof by replacing its criminal law with a
civil system in which there is no presumption of innocence and the
defendant has the burden of proof. Nor should we entertain the
proposition that this case differs from a conviction of guilty
because petitioner has been adjudged "not guilty by reason of
insanity," rather than "guilty but insane." Petitioner has
suggested no grounds on which to distinguish the liberty interests
involved or procedural protections afforded as a consequence of the
State's ultimate choice of nomenclature. The due process
implications ought not to vary under these circumstances. This is a
criminal case in which the State has complied with the rigorous
demands of
In re Winship.
The majority's failure to recognize the criminal character of
these proceedings and its concomitant standards of proof leads it
to confiate the standards for civil and criminal commitment in a
manner not permitted by our precedents.
O'Connor v.
Donaldson, 422
U. S. 563 (1975), and
Addington v.
Texas, supra,
define the due process limits of involuntary civil commitment.
Together they stand for the proposition that in civil proceedings
the Due Process Clause requires the State to prove both insanity
and dangerousness by clear and convincing evidence. See
O'Connor, supra, at 575;
Addington, supra, at 433.
Their precedential value in the civil context is beyond question.
But it is an error to apply these precedents, as the majority does
today, to criminal proceedings. By treating this criminal case as a
civil one, the majority overrules a principal holding in
Jones v.
United States, 463 U. S., at 354.
In
Jones we considered the system of criminal commitment
enacted by Congress for the District of Columbia.
Id., at
356-358. Congress provided for acquittal by reason of insanity only
after the Government had shown, beyond a rea-
95
sonable doubt, that the defendant had committed the crimes
charged.
Id., at 363-364, and n. 12. In cases of acquittal
by reason of insanity, District law provided for automatic
commitment followed by periodic hearings, where the insanity
acquittee was given the opportunity to prove that he was no longer
insane or dangerous.
Id., at 357-358, and n. 3. Petitioner
in
Jones contended that
Addington and
O'Connor
applied to criminal proceedings as well as civil, requiring the
Government to prove insanity and dangerousness by clear and
convincing evidence before commitment. We rejected that contention.
In
Jones we distinguished criminal from civil commitment,
holding that the Due Process Clause permits automatic incarceration
after a criminal adjudication and without further process.
Id., at 366. The majority today in effect overrules that
holding. It holds that "keeping Foucha against his will in a mental
institution is improper absent a determination in civil commitment
proceedings of current mental illness and dangerousness."
Ante, at 78; see also
ante, at 80, 85-86. Our holding
in
Jones was clear and to the contrary. We should not so
disregard controlling precedent.
Our respect for the Court's opinion in
Jones should be
informed by the recognition that its distinction between civil and
criminal commitment is both sound and consistent with
long-established precedent. First, as described above, the
procedural protections afforded in a criminal commitment surpass
those in a civil commitment; indeed, these procedural protections
are the most stringent known to our law. Second, proof of criminal
conduct in accordance with
In re Winship eliminates the risk
of incarceration "for mere 'idiosyncratic behavior,' [because a]
criminal act by definition is not 'within a range of conduct that
is generally acceptable.'"
Jones, supra, at 367, quoting
Addington, supra, at 426-427. The criminal law defines a
discrete category of conduct for which society has reserved its
greatest opprobrium and strictest sanctions; past or future
dangerousness, as ascer-
96
tained or predicted in civil proceedings, is different in kind.
Third, the State presents distinct rationales for these differing
forms of commitment: In the civil context, the State acts in large
part on the basis of its
parens patriae power to protect and
provide for an ill individual, while in the criminal context, the
State acts to ensure the public safety. See
Addington, 441 U. S., at 426; S. Brakel, J. Parry,
& B. Weiner, The Mentally Disabled and the Law 24-25 (3d ed.
1985). A dismissive footnote, see
ante, at 76-77, n. 4,
cannot overcome these fundamental defects in the majority's
opinion.
The majority's opinion is troubling at a further level, because
it fails to recognize or account for profound differences between
clinical insanity and state-law definitions of criminal insanity.
It is by now well established that insanity as defined by the
criminal law has no direct analog in medicine or science. "[T]he
divergence between law and psychiatry is caused in part by the
legal fiction represented by the words 'insanity' or 'insane,'
which are a kind of lawyer's catchall and have no clinical
meaning." J. Biggs, The Guilty Mind 117 (1955); see also 2 J.
Bouvier, Law Dictionary 1590 (8th ed. 1914) ("The legal and the
medical ideas of insanity are essentially different, and the
difference is one of substance"). Consistent with the general rule
that the definition of both crimes and defenses is a matter of
state law, see
Patterson v.
New York, 432 U. S., at
210, the States are free to recognize and define the insanity
defense as they see fit.
"Nothing could be less fruitful than for this Court to be
impelled into defining some sort of insanity test in constitutional
terms .... It is simply not yet the time to write into the
Constitution formulas cast in terms whose meaning, let alone
relevance, is not yet clear either to doctors or to lawyers."
Powell v. Texas, 392 U. S. 514, 536-537
(1968) (plurality opinion).
See also
id., at 545 (the Constitution does not impose on
the States any particular test of criminal responsibility) (Black,
J., concurring).
97
As provided by Louisiana law, and consistent with both federal
criminal law and the law of a majority of the States, petitioner
was found not guilty by reason of insanity under the traditional
M'Naghten test. See La. Rev. Stat. Ann. § 14:14 (West 1986);
18 U. S. C. § 17;
M'Naghten's Case, 10 Cl. & Fin. 200, 8
Eng. Rep. 718 (1843); 1 LaFave & Scott § 4.2, at 436. Louisiana
law provides a traditional statement of this test: "If the
circumstances indicate that because of a mental disease or mental
defect the offender was incapable of distinguishing between right
and wrong with reference to the conduct in question, the offender
shall be exempt from criminal responsibility." La. Rev. Stat. Ann.
§ 14:14 (West 1986).
Because the
M'Naghten test for insanity turns on a
finding of criminal irresponsibility at the time of the offense, it
is quite wrong to place reliance on the fact, as the majority does,
that Louisiana does not contend that petitioner is now insane. See
ante, at 78. This circumstance should come as no surprise,
since petitioner was competent at the time of his plea, 563 So. 2d,
at 1139, and indeed could not have entered a plea otherwise, see
Drope v.
Missouri, 420 U. S. 162, 171
(1975). Present sanity would have relevance if petitioner had been
committed as a consequence of civil proceedings, in which dangerous
conduct in the past was used to predict similar conduct in the
future. It has no relevance here, however. Petitioner has not been
confined based on predictions about future behavior but rather for
past criminal conduct. Unlike civil commitment proceedings, which
attempt to divine the future from the past, in a criminal trial
whose outcome turns on
M'Naghten, findings of past insanity
and past criminal conduct possess intrinsic and ultimate
significance.
The system here described is not employed in all jurisdictions.
Some have supplemented the traditional
M'Naghten test with
the so-called "irresistible impulse" test, see 1 LaFave & Scott
§ 4.1, at 427-428; others have adopted a test proposed as part of
the Model Penal Code, see
ibid.; and still
98
others have abolished the defense altogether, see Idaho Code §
18-207(a) (1987); Mont. Code Ann. §46-14-102 (1992). Since it is
well accepted that the States may define their own crimes and
defenses, see
supra, at 96, the point would not warrant
further mention, but for the fact that the majority loses sight of
it. In describing our decision in
Jones, the majority relies
on our statement that a verdict of not guilty by reason of insanity
establishes that the defendant "'committed the act because of
mental illness.'"
Ante, at 76, quoting
Jones, 463 U.
S., at 363. That was an accurate statement in
Jones but not
here. The defendant in
Jones was acquitted under the
Durham test for insanity, which excludes from punishment
criminal conduct that is the product of a mental disease or defect.
See
Bethea v.
United States, 365 A. 2d 64, 69, n. 11
(1976); see also
Durham v.
United States, 94 U. S.
App. D. C. 228, 240-241,
214 F.2d
862, 874875 (1954). In a
Durham jurisdiction, it would
be fair to say, as the Court did in
Jones, that a defendant
acquitted by reason of insanity "committed the act because of
mental illness."
Jones, supra, at 363. The same cannot be
said here, where insanity under
M'Naghten proves only that
the defendant could not have distinguished between right and wrong.
It is no small irony that the aspect of
Jones on which the
majority places greatest reliance, and indeed cites as an example
of its adherence to
Jones, has no bearing on the Louisiana
statute at issue here. See
ante, at 76, and n.4.
The establishment of a criminal act and of insanity under the
M'Naghten regime provides a legitimate basis for
confinement. Although Louisiana has chosen not to punish insanity
acquittees, the State has not surrendered its interest in
incapacitative incarceration. The Constitution does not require any
particular model for criminal confinement,
Harmelin
v.
Michigan, 501 U. S. 957, 999 (1991)
(KENNEDY, J., concurring in judgment) ("The federal and state
criminal systems have accorded different weights at different
times
99
to the penological goals of retribution, deterrence,
incapacitation, and rehabilitation");
Williams v.
New
York, 337 U. S.
241, 246 (1949), and upon compliance with
In re Winship,
the State may incarcerate on any reasonable basis, see
supra, at 93. Incapacitation for the protection of society
is not an unusual ground for incarceration. "[I]solation of the
dangerous has always been considered an important function of the
criminal law,"
Powell v.
Texas, 392 U. S. 514, 539 (1968)
(Black, J., concurring), and insanity acquittees are a special
class of offenders proved dangerous beyond their own ability to
comprehend. The wisdom of incarceration under these circumstances
is demonstrated by its high level of acceptance. Every State
provides for discretionary or mandatory incarceration of insanity
acquittees, 1 LaFave & Scott § 4.6(a), at 510, and as JUSTICE
THOMAS observes in his dissent, provisions like those in Louisiana,
predicated on dangerousness alone, have been endorsed by the Model
Penal Code and adopted by the legislatures of no fewer than 11
other States. See
post, at 111-112, and nn. 8 and 9.
It remains to be seen whether the majority, by questioning the
legitimacy of incapacitative incarceration, puts in doubt the
confinement of persons other than insanity acquittees. Parole
release provisions often place the burden of proof on the prisoner
to prove his lack of dangerousness. To use a familiar example,
under the federal parole system in place until the enactment of the
Sentencing Guidelines, an inmate could not be released on parole
unless he established that his "release would not jeopardize the
public welfare." 18 U. S. C. § 4206(a)(2) (1982 ed.), repealed 98
Stat. 2027; see also 28 CFR § 2.18 (1991). This requirement
reflected "the incapacitative aspect of the use of imprisonment
which has the effect of denying the opportunity for future
criminality, at least for a time." U. S. Dept. of Justice, United
States Parole Commission Rules and Procedures Manual 69 (July 24,
1989). This purpose is consistent with the parole release
provisions of Alabama, Colorado, Hawaii, Massachusetts,
100
Michigan, New York, and the District of Columbia, to name just a
few. See N. Cohen & J. Gobert, Law of Probation and Parole §
3.05, p. 109, and n. 103 (1983). It is difficult for me to
reconcile the rationale of incapacitative incarceration, which
underlies these regimes, with the opinion of the majority, which
discounts its legitimacy.
I also have difficulty with the majority's emphasis on the
conditions of petitioner's confinement. In line with JUSTICE
O'CONNOR'S concurring opinion, see
ante, at 87-88, the
majority emphasizes the fact that petitioner has been confined in a
mental institution, see
ante, at 77-78, 78-79, 82,
suggesting that his incarceration might not be unconstitutional if
undertaken elsewhere. The majority offers no authority for its
suggestion, while JUSTICE O'CONNOR relies on a reading of
Vitek v.
Jones, 445 U. S. 480 (1980),
which was rejected by the Court in
Jones v.
United
States. See
ante, at 87-88, citing
Jones v.
United States, supra, at 384-385 (Brennan, J., dissenting).
The petitioner did not rely on this argument at any point in the
proceedings, and we have not the authority to make the assumption,
as a matter oflaw, that the conditions of petitioner's confinement
are in any way infirm. Ours is not a case, as in
Vitek v.
Jones, where the State has stigmatized petitioner by placing
him in a mental institution when he should have been placed
elsewhere.
Jones v.
United States is explicit on this
point: "A criminal defendant who successfully raises the insanity
defense necessarily is stigmatized by the verdict itself, and thus
the commitment causes little additional harm in this respect." 463
U. S., at 367, n. 16. Nor is this a case, as in
Washington
v.
Harper, 494
U. S. 210 (1990), in which petitioner has suffered some further
deprivation of liberty to which independent due process protections
might attach. Both the fact and conditions of confinement here are
attributable to petitioner's criminal conduct and subsequent
decision to plead insanity. To the extent the majority relies on
the conditions of petitioner's
101
confinement, its decision is without authority, and most of its
opinion is nothing more than confusing dicta.
I submit that today's decision is unwarranted and unwise.
I share the Court's concerns about the risks inherent in
requiring a committed person to prove what can often be imprecise,
but as JUSTICE THOMAS observes in his dissent, this is not a case
in which the period of confinement exceeds the gravity of the
offense or in which there are reasons to believe the release
proceedings are pointless or a sham.
Post, at 114, n. 10.
Petitioner has been incarcerated for less than one-third the
statutory maximum for the offenses proved by the State. See La.
Rev. Stat. Ann. §§ 14:60 (aggravated burglary) and 14:94 (illegal
use of a weapon) (West 1986). In light of these facts, the
majority's repeated reference to "indefinite detention," with
apparent reference to the potential duration of confinement, and
not its lack of a fixed end point, has no bearing on this case. See
ante, at 77, n. 4, 82, 83, n. 6; cf.
ante, at 77, n.
4 (curious suggestion that confinement has been extended beyond an
initial term of years). It is also significant to observe that this
is not a case in which the incarcerated subject has demonstrated
his nondangerousness. Within the two months before his release
hearing, petitioner had been sent to a maximum security section of
the Feliciana Forensic Facility because of altercations with
another patient. 563 So. 2d, at 1141. Further, there is evidence in
the record which suggests that petitioner's initial claim of
insanity may have been feigned. The medical panel that reviewed
petitioner's request for release stated that "there is no evidence
of mental illness," and indeed that there was "never any evidence
of mental illness or disease since admission." App. 10. In sum, it
would be difficult to conceive of a less compelling situation for
the imposition of sweeping new constitutional commands such as the
majority imposes today.
Because the majority confiates the standards for civil and
criminal commitment, treating this criminal case as though
102
it were civil, it upsets a careful balance relied upon by the
States, not only in determining the conditions for continuing
confinement, but also in defining the defenses permitted for mental
incapacity at the time of the crime in question. In my view, having
adopted a traditional and well-accepted test for determining
criminal insanity, and having complied with the rigorous demands of
In re Winship, the State possesses the constitutional
authority to incarcerate petitioner for the protection of society.
I submit my respectful dissent.
JUSTICE THOMAS, with whom THE CHIEF JUSTICE and JUSTICE SCALIA
join, dissenting.
The Louisiana statutory scheme the Court strikes down today is
not some quirky relic of a bygone age, but a codification of the
current provisions of the American Law Institute's Model Penal
Code. Invalidating this quite reasonable scheme is bad enough; even
worse is the Court's failure to explain precisely what is wrong
with it. In parts of its opinion, the Court suggests that the
scheme is unconstitutional because it provides for the continued
confinement of insanity acquittees who, although still dangerous,
have "recovered" their sanity.
Ante, at 77 ("[T]he committed
acquittee is
entitled to release when he has recovered his
sanity
or is no longer dangerous") (emphasis added; internal
quotation marks omitted). In other parts of the opinion, the Court
suggests-and the concurrence states explicitly-that the
constitutional flaw with this scheme is
not that it provides
for the confinement of sane insanity acquittees, but that it
(allegedly) provides for their "indefinite" confinement in a mental
facility.
Ante, at 82;
ante, at 86-87 (O'CONNOR, J.,
concurring in part and concurring in judgment). Nothing in the
Constitution, this Court's precedents, or our society's traditions
authorizes the Court to invalidate the Louisiana scheme on either
of these grounds. I would therefore affirm the judgment of the
Louisiana Supreme Court.
103
I
The Court errs, in large part, because it fails to examine in
detail the challenged statutory scheme and its application in this
case. Under Louisiana law, a verdict of "not guilty by reason of
insanity" differs significantly from a verdict of "not guilty." A
simple verdict of not guilty following a trial means that the State
has failed to prove all of the elements of the charged crime beyond
a reasonable doubt. See,
e. g., State v.
Messiah, 538 So. 2d 175, 180 (La. 1988) (citing
In re
Winship, 397 U.
S. 358 (1970)); cf. La. Code Crim. Proc. Ann., Art. 804(A)(1)
(West 1969). A verdict of not guilty by reason of insanity, in
contrast, means that the defendant
committed the crime, but
established that he was "incapable of distinguishing between right
and wrong" with respect to his criminal conduct. La. Rev. Stat.
Ann. § 14:14 (West 1986). Insanity, in other words, is an
affirmative defense that does not negate the State's proof, but
merely "exempt[s the defendant] from criminal responsibility."
Ibid. As the Louisiana Supreme Court has summarized: "The
State's traditional burden of proof is to establish beyond a
reasonable doubt all necessary elements of the offense.
Once
this rigorous burden of proof has been met, it having been
shown that defendant
has committed a crime, the defendant
... bear[s] the burden of establishing his defense of insanity in
order to escape punishment."
State v.
Marmillion, 339
So. 2d 788, 796 (1976) (emphasis added). See also
State v.
Surrency, 88 So. 240, 244 (La. 1921).
Louisiana law provides a procedure for a judge to render a
verdict of not guilty by reason of insanity upon a plea without a
trial. See La. Code Crim. Proc. Ann., Art. 558.1 (West Supp. 1991).
The trial court apparently relied on this procedure when it
committed Foucha. See 563 So. 2d 1138, 1139,
104
n. 3 (La. 1990).1 After ordering two experts to examine Foucha,
the trial court issued the following judgment:
"After considering the law and the evidence adduced in this
matter, the Court finds that the accused, Terry Foucha, is unable
to appreciate the usual, natural and probable consequences of his
acts; that he is unable to distinguish right from wrong; that he is
a menace to himself and to others; and that he was insane at the
time of the commission of the above crimes and that he is presently
insane." App. 6.
After adjudicating a defendant not guilty by reason of insanity,
a trial court must hold a hearing on the issue of dangerousness.
The law specifies that "[i]f the court determines that the
defendant cannot be released without a danger to others or to
himself, it shall order him committed to ... [a] mental
institution." La. Code Crim. Proc. Ann., Art. 654 (West Supp.
1991).2 "'Dangerous to others' means
1 Under La. Code Crim. Proc. Ann., Art. 558.1 (West Supp. 1991),
a criminal defendant apparently concedes that he committed the
crime, and advances his insanity as the sole ground on which to
avoid conviction. Foucha does not challenge the procedures whereby
he was adjudicated not guilty by reason of insanity; nor does he
deny that he committed the crimes with which he was charged.
2 Article 654 provides in pertinent part:
''When a defendant is found not guilty by reason of insanity in
any [noncapital] felony case, the court shall remand him to the
parish jail or to a private mental institution approved by the
court and shall promptly hold a contradictory hearing at which the
defendant shall have the burden of proof, to determine whether the
defendant can be discharged or can be released on probation,
without danger to others or to himself. If the court determines
that the defendant cannot be released without danger to others or
to himself, it shall order him committed to a proper state mental
institution or to a private mental institution approved by the
court for custody, care, and treatment. If the court determines
that the defendant can be discharged or released on probation
without danger to others or to himself, the court shall either
order his discharge, or order his release on probation subject to
specified conditions for a fixed or an indeterminate period. The
court shall assign written findings of fact and conclusions of
105
the condition of a person whose behavior or significant threats
support a
reasonable expectation that there is a
substantial risk that he will inflict physical harm upon
another person
in the near future." La. Rev. Stat. Ann. §
28:2(3) (West 1986) (emphasis added). "'Dangerous to self' means
the condition of a person whose behavior, significant threats or
inaction supports a reasonable expectation that there is a
substantial risk that he will inflict physical or severe emotional
harm upon his own person." § 28:2(4).
After holding the requisite hearings, the trial court in this
case ordered Foucha committed to the Feliciana Forensic Facility.
After his commitment, Foucha was entitled, upon request, to another
hearing six months later and at yearly intervals after that. See
La. Code Crim. Proc. Ann., Art. 655(B) (West Supp. 1991).3 In
addition, Louisiana law provides that a release hearing must be
held upon recommendation by the superintendent of a mental
institution. See Art. 655(A).4 In early 1988, Feliciana's
superintendent recom-
law; however, the assignment of reasons shall not delay the
implementation of judgment."
3 Article 655(B) provides:
"A person committed pursuant to Article 654 may make application
to the review panel for discharge or for release on probation. Such
application by a committed person may not be filed until the
committed person has been confined for a period of at least six
months after the original commitment. If the review panel
recommends to the court that the person be discharged,
conditionally or unconditionally, or placed on probation, the court
shall conduct a hearing following notice to the district attorney.
If the recommendation of the review panel or the court is adverse,
the applicant shall not be permitted to file another application
until one year has elapsed from the date of determination."
4 Article 655(A) provides:
''When the superintendent of a mental institution is of the
opinion that a person committed pursuant to Article 654 can be
discharged or can be released on probation, without danger to
others or to himself, he shall recommend the discharge or release
of the person in a report to a review panel comprised of the
person's treating physician, the clinical director of the facility
to which the person is committed, and a physician or psychologist
who served on the sanity commission which recommended commitment of
the person. If any member of the panel is unable to serve, a
106
mended that Foucha be released, and a three-doctor panel met to
review the case. On March 21,1988, the panel issued a report
pursuant to Article 656.5 The panel concluded that "there is no
evidence of mental illness." App. 10. In fact, the panel stated
that there was
"never any evidence of mental illness or
disease since admission."
Ibid. (emphasis added). Although
the panel did not discuss whether Foucha was dangerous, it
recommended to the trial court that he be conditionally
released.
As a result of these recommendations, the trial court scheduled
a hearing to determine whether Foucha should be released. Under La.
Code Crim. Proc. Ann., Art. 657 (West Supp. 1991),6 Foucha had the
burden at this hearing to prove
physician or a psychologist engaged in the practice of clinical
or counseling psychology with at least three years' experience in
the field of mental health shall be appointed by the remaining
members. The panel shall review all reports received promptly.
After review, the panel shall make a recommendation to the court by
which the person was committed as to the person's mental condition
and whether he can be discharged, conditionally or unconditionally,
or placed on probation, without being a danger to others or
himself. If the review panel recommends to the court that the
person be discharged, conditionally or unconditionally, or placed
on probation, the court shall conduct a contradictory hearing
following notice to the district attorney."
5 Article 656 provides:
"A. Dpon receipt of the superintendent's report, filed in
conformity with Article 655, the review panel may examine the
committed person and report, to the court promptly, whether he can
be safely discharged, conditionally or unconditionally, or be
safely released on probation, without danger to others or to
himself.
"B. The committed person or the district attorney may also
retain a physician to examine the committed person for the same
purpose. The physician's report shall be filed with the court."
6 Article 657 provides:
"After considering the report or reports filed pursuant to
Articles 655 and 656, the court may either continue the commitment
or hold a contradictory hearing to determine whether the committed
person can be discharged, or can be released on probation, without
danger to others or to
107
that he could be released without danger to others or to
himself. The court appointed two experts (the same doctors who had
examined Foucha at the time of his original commitment) to evaluate
his dangerousness. These doctors concluded that Foucha "is
presently in remission from mental illness," but said that they
could not "certify that he would not constitute a menace to himself
or to others if released." App. 12. On November 29, 1988, the trial
court held the hearing, at which Foucha was represented by counsel.
The court concluded that Foucha "is a danger to himself, and to
others,"
id., at 24, and ordered that he be returned to
Feliciana.7
II
The Court today concludes that Louisiana has denied Foucha both
procedural and substantive due process. In my view, each of these
conclusions is wrong. I shall discuss them in turn.
A
What the Court styles a "procedural" due process analysis is in
reality an equal protection analysis. The Court first asserts
(contrary to state law) that Foucha cannot be held as an insanity
acquittee once he "becomes" sane.
Ante, at 78-79.
himself. At the hearing the burden shall be upon the committed
person to prove that he can be discharged, or can be released on
probation, without danger to others or to himself. After the
hearing, and upon filing written findings of fact and conclusions
of law, the court may order the committed person discharged,
released on probation subject to specified conditions for a fixed
or an indeterminate period, or recommitted to the state mental
institution. Notice to the counsel for the committed person and the
district attorney of the contradictory hearing shall be given at
least thirty days prior to the hearing."
7 The Louisiana Supreme Court concluded that the trial court did
not abuse its discretion in finding that Foucha had failed to prove
that he could be released without danger to others or to himself
under La. Code Crim. Proc. Ann., Art. 657 (West Supp. 1991). See
563 So. 2d 1138, 1141 (1990). That issue is not now before us.
108
That being the case, he is entitled to the same treatment as
civil committees.
"[IJ! Foucha can no longer be held as an
insanity acquittee," the Court says, "he is entitled to
constitutionally adequate procedures [those afforded in civil
commitment proceedings] to establish the grounds for his
confinement."
Ante, at 79 (emphasis added). This, of course,
is an equal protection argument (there being no rational
distinction between A and B, the State must treat them the same);
the Court does not even pretend to examine the fairness of the
release procedures the State has provided.
I cannot agree with the Court's conclusion because I believe
that there is a real and legitimate distinction between insanity
acquittees and civil committees that justifies procedural
disparities. Unlike civil committees, who have
not been
found to have harmed society, insanity acquittees have been found
in a judicial proceeding to have committed a criminal act.
That distinction provided the
ratio decidendi for our
most relevant precedent,
Jones v.
United States,
463 U. S. 354
(1983). That case involved a man who had been
automatically
committed to a mental institution after being acquitted of a crime
by reason of insanity in the District of Columbia (i.
e., he
had not been given the procedures afforded to civil committees). We
rejected both of his procedural due process challenges to his
commitment. First, we held that an insanity acquittal justified
automatic commitment of the acquittee (even though he might
presently be sane), because Congress was entitled to decide
that the verdict provided a
reasonable basis for inferring
dangerousness and insanity at the time of commitment.
Id.,
at 366. The Government's interest in avoiding a
de novo
commitment hearing following every insanity acquittal, we said,
outweighed the acquittee's interest in avoiding unjustified
institutionalization.
Ibid. Second, we held that the
Constitution did not require, as a predicate for the indefinite
commitment of insanity acquittees, proof of insanity by "clear and
convincing" evidence, as
109
required for civil committees by
Addington v.
Texas, 441 U.
S. 418 (1979). There are, we recognized, "important differences
between the class of potential civil-commitment candidates and the
class of insanity acquittees that justify differing standards of
proof."
Jones, 463 U. S., at 367. In sharp contrast to a
civil committee, an insanity acquittee is institutionalized only
where "the
acquittee himself advances insanity as a defense
and proves that his criminal act was a product of his mental
illness," and thus "there is good reason for diminished concern as
to the risk of error."
Ibid. (emphasis in original). "More
important, the proof that he committed a criminal act ...
eliminates the risk that he is being committed for mere
'idiosyncratic behavior.'''
Ibid. Thus, we concluded, the
preponderance of the evidence standard comports with due process
for commitment of insanity acquittees.
Id., at 368.
"[I]nsanity acquittees constitute a special class that should be
treated differently from other candidates for commitment."
Id., at 370.
The Court today attempts to circumvent
Jones by declaring
that a State's interest in treating insanity acquittees differently
from civil committees evaporates the instant an acquittee "becomes
sane." I do not agree. As an initial matter, I believe that it is
unwise, given our present understanding of the human mind, to
suggest that a determination that a person has "regained sanity" is
precise. "Psychiatry is not ... an exact science, and psychiatrists
disagree widely and frequently on what constitutes mental illness."
Ake v.
Oklahoma, 470 U. S. 68,81 (1985).
Indeed,
"[w]e have recognized repeatedly the 'uncertainty of diagnosis
in this field and the tentativeness of professional judgment. The
only certain thing that can be said about the present state of
knowledge and therapy regarding mental disease is that science has
not reached finality of judgment.' The lesson we have drawn is not
that government may not act in the face of this uncertainty, but
rather that courts should pay particular
110
deference to reasonable legislative judgments." Jones,
supra, at 365, n. 13 (quoting Greenwood v. United
States, 350 U. S.
366, 375 (1956); citations omitted).
In this very case, the panel that evaluated Foucha in
1988 concluded that there was
"never any evidence of mental
illness or disease since admission," App. 10; the trial court, of
course, concluded that Foucha was "presently insane,"
id.,
at 6, at the time it accepted his plea and sent him to
Feliciana.
The distinction between civil committees and insanity
acquittees, after all, turns
not on considerations of
present sanity, but instead on the fact that the latter have
"already unhappily manifested the reality of anti-social conduct,"
Dixon v.
Jacobs, 138 U. S. App. D. C. 319, 334,
427 F.2d
589, 604 (1970) (Leventhal, J., concurring).
"[T]he prior
anti-social conduct of an insanity acquittee justifies treating
such a person differently from ones otherwise civilly committed for
purposes of deciding whether the patient should be released."
Powell v.
Florida, 579 F.2d
324, 333 (CA5 1978) (emphasis added); see also
United
States v.
Ecker, 177 U. S. App. D. C. 31, 50,
543 F.2d
178, 197 (1976), cert. denied, 429 U. S. 1063 (1977). While a
State may renounce a punitive interest by offering an insanity
defense, it does not follow that, once the acquittee's sanity is
"restored," the State is required to ignore his criminal act, and
to renounce all interest in protecting society from him. "The state
has a substantial interest in avoiding premature release of
insanity acquittees, who have committed acts constituting felonies
and have been declared dangerous to society."
Hickey v.
Morris, 722 F.2d
543, 548 (CA9 1983).
Furthermore, the Federal Constitution does not require a State
to "ignore the danger of 'calculated abuse of the insanity
defense.'''
Warren v.
Harvey, 632
F.2d 925, 932 (CA2 1980) (quoting
United States v.
Brown, 155 U. S. App. D. C. 402,407,
478
F.2d 606, 611 (1973)). A State that decides to offer its
criminal defendants an insanity defense, which the defendant
himself is given the choice of invoking, is surely
111
allowed to attach to that defense certain consequences that
prevent abuse. Cf.
Lynch v.
Overholser, 369 U. S. 705, 715 (1962)
("Congress might have considered it appropriate to provide
compulsory commitment for those who successfully invoke an insanity
defense in order to discourage false pleas of insanity").
"In effect, the defendant, by raising the defense of
insanity-and he alone can raise it-postpones a determination of his
present mental health and acknowledges the right of the state, upon
accepting his plea, to detain him for diagnosis, care, and custody
in a mental institution until certain specified conditions are met
.... [C]ommitment via the criminal process ... thus is more akin to
'voluntary' than 'involuntary' civil commitment." Goldstein &
Katz, Dangerousness and Mental Illness, Some Observations on the
Decision to Release Persons Acquitted by Reason of Insanity, 70
Yale L. J. 225, 230 (1960) (footnote omitted).
A State may reasonably decide that the integrity of an
insanity-acquittal scheme requires the continued commitment of
insanity acquittees who remain dangerous. Surely, the citizenry
would not long tolerate the insanity defense if a serial killer who
convinces a jury that he is not guilty by reason of insanity is
returned to the streets immediately after trial by convincing a
different factfinder that he is not in fact insane.
As the American Law Institute has explained:
"It seemed preferable to the Institute to make dangerousness the
criterion for continued custody, rather than to provide that the
committed person may be discharged or released when restored to
sanity as defined by the mental hygiene laws. Although his mental
disease may have greatly improved, [an insanity acquittee] may
still be dangerous because of factors in his personality and
background other than mental disease. Also, such a
112
standard provides a means for the control of the occasional
defendant who may be quite dangerous but who successfully feigned
mental disease to gain an acquittal." Model Penal Code § 4.08,
Comment 3, pp. 259-260 (1985).8
That this is a reasonable legislative judgment is underscored by
the fact that it has been made by no fewer than 11 state
legislatures, in addition to Louisiana's, which expressly provide
that insanity acquittees shall not be released as long as they are
dangerous, regardless of sanity.9
8 The relevant provision of the Model Penal Code, strikingly
similar to Article 657 of the Louisiana Code of Criminal Procedure,
see
supra, n. 6, provides in part as follows:
"If the Court is satisfied by the report filed pursuant to
Subsection (2) of this Section and such testimony of the reporting
psychiatrists as the Court deems necessary that the committed
person may be discharged or released on condition without danger to
himself or others, the Court shall order his discharge or his
release on such conditions as the Court determines to be necessary.
If the Court is not so satisfied, it shall promptly order a hearing
to determine whether such person may safely be discharged or
released. Any such hearing shall be deemed a civil proceeding and
the burden shall be upon the committed person to prove that he may
safely be discharged or released." Model Penal Code § 4.08(3)
(Proposed Official Draft 1962).
9See Cal. Penal Code Ann. § 1026.2(e) (West Supp. 1992)
(insanity acquittee not entitled to release until court determines
that he "will not be a danger to the health and safety of others,
including himself"); Del. Code Ann., Tit. 11, § 403(b) (1987)
(insanity acquittee shall be kept institutionalized until court "is
satisfied that the public safety will not be endangered by his
release"); Raw. Rev. Stat. § 704-415 (1985) (insanity acquittee not
entitled to release until court satisfied that acquittee "may
safely be discharged or released"); Iowa Rule Crim. Proc. 21.8(e)
(insanity acquittee not entitled to release as long as "court finds
that continued custody and treatment are necessary to protect the
safety of the [acquittee's] self or others"); Kan. Stat. Ann. §
22-3428(3) (Supp. 1990) (insanity acquittee not entitled to release
until "the court finds by clear and convincing evidence that [he]
will not be likely to cause harm to self or others if released or
discharged"); Mont. Code Ann. §46-14-301(3) (1991) (insanity
acquittee not entitled to release until he proves that he "may
safely be released");
113
The Court suggests an alternative "procedural" due process
theory that is, if anything, even less persuasive than its
principal theory. "[K]eeping Foucha against his will
in a
mental institution is improper absent a determination in civil
commitment proceedings of current mental illness and
dangerousness."
Ante, at 78 (emphasis added). The Court
cites
Vitek v.
Jones, 445 U. S. 480 (1980), as
support. There are two problems with this theory. First, it is
illogical: Louisiana cannot possibly extend Foucha's incarceration
by adding the procedures afforded to civil committees, since it is
impossible to civilly commit someone who is not presently
N. J. Stat. Ann. §
2C:4-9 (West 1982) (insanity acquittee
not entitled to release or discharge until court satisfied that he
is not "danger to himself or others"); N. C. Gen. Stat. §
122C-268.1(i) (Supp. 1991) (insanity acquittee not entitled to
release until he "prove[s] by a preponderance of the evidence that
he is no longer dangerous to others"); Va. Code Ann. § 19.2181(3)
(1990) (insanity acquittee not entitled to release until he proves
"that he is not insane or mentally retarded
and that his
discharge would not be dangerous to the public peace and safety or
to himself" (emphasis added)); Wash. Rev. Code § 10.77.200(2)
(1990) ("The burden of proof [at a release hearing] shall be upon
the [insanity acquittee] to show by a preponderance of the evidence
that [he] may be finally discharged without substantial danger to
other persons, and without presenting a substantial likelihood of
committing felonious acts jeopardizing public safety or security");
Wis. Stat. § 971.17(4) (Supp. 1991) (insanity acquittee not
entitled to release where court "finds by clear and convincing
evidence that the [acquittee] would pose a significant risk of
bodily harm to himself or herself or to others of serious property
damage if conditionally released").
The Court and the concurrence dispute this list of statutes.
Ante, at 84-85, n. 6;
ante, at 89 (O'CONNOR, J.,
concurring in part and concurring in judgment). They note that two
of the States have enacted new laws, not yet effective, modifying
their current absolute prohibitions on the release of dangerous
insanity acquittees; that courts in two other States have
apparently held that mental illness is a prerequisite to
confinement; and that three of the States place caps of some sort
on the duration of the confinement of insanity acquittees. Those
criticisms miss my point. I cite the 11 state statutes above only
to show that the legislative judgments underlying Louisiana's
scheme are far from unique or freakish, and that there is no
well-established practice in our society, either past or present,
of automatically releasing sane-but-dangerous insanity
acquittees.
114
mentally ill. Second, the theory is not supported by
Vitek. Stigmatization (our concern in
Vitek) is
simply not a relevant consideration where insanity acquittees are
involved. As we explained in
Jones: "A criminal defendant
who successfully raises the insanity defense necessarily is
stigmatized by the verdict itself, and thus the commitment causes
little additional harm in this respect." 463 U. S., at 367, n. 16;
see also
Warren v.
Harvey, 632 F. 2d, at 931-932.
(This is in sharp contrast to situations involving civil
committees. See
Addington, 441 U. S., at 425-426;
Vitek,
supra, at 492-494.) It is implausible, in my view, that a
person who chooses to plead not guilty by reason of insanity and
then spends several years in a mental institution becomes
unconstitutionally stigmatized by continued confinement in the
institution after "regaining" sanity.
In my view, there was no procedural due process violation in
this case. Articles 654, 655, and 657 of the Louisiana Code of
Criminal Procedure, as noted above, afford insanity acquittees the
opportunity to obtain release by demonstrating at regular intervals
that they no longer pose a threat to society. These provisions also
afford judicial review of such determinations. Pursuant to these
procedures, and based upon testimony of experts, the Louisiana
courts determined not to release Foucha at this time because the
evidence did not show that he ceased to be dangerous. Throughout
these proceedings, Foucha was represented by state-appointed
counsel. I see no plausible argument that these procedures denied
Foucha a fair hearing on the issue involved or that Foucha needed
additional procedural protections.10 See
Mathews v.
Eldridge, 424
U. S. 319 (1976);
Patterson v.
New York, 432 U. S. 197 (1977); cf.
Addington, supra, at 427-432;
10 Foucha has not argued that the State's procedures,
as
applied, are a sham. This would be a different case if Foucha
had established that the statutory mechanisms for release were
nothing more than window dressing, and that the State in fact
confined insanity acquittees indefinitely without meaningful
opportunity for review and release.
115
Jones, supra, at 363-368;
Benham v.
Ledbetter, 785 F.2d
1480, 1486-1488
(CA111986)Y
B
The Court next concludes that Louisiana's statutory scheme must
fall because it violates Foucha's
substantive due process
rights.
Ante, at 80-83, and n. 6. I disagree. Until today, I
had thought that the analytical framework for evaluating
substantive due process claims was relatively straightforward.
Certain substantive rights we have recognized as "fundamental";
legislation trenching upon these is subjected to "strict scrutiny,"
and generally will be invalidated unless the State demonstrates a
compelling interest and narrow tailoring. Such searching judicial
review of state legislation, however, is the exception, not the
rule, in our democratic and federal system; we have consistently
emphasized that "the Court has no license to invalidate legislation
which it thinks merely arbitrary or unreasonable."
Regents of
University of Michigan v.
Ewing, 474 U. S. 214, 226 (1985)
(internal quotation marks omitted). Except in the unusual case
where a fundamental right is infringed, then, federal judicial
scrutiny of the substance of state legislation under the Due
Process Clause of the Fourteenth Amendment is not exacting. See,
e. g., Bowers v.
Hardwick, 478 U. S. 186, 191-196
(1986).
In striking down Louisiana's scheme as a violation of
substantive rights guaranteed by the Due Process Clause, the
11 As explained above, the Court's "procedural" due process
analysis is essentially an equal protection analysis: The Court
first disregards the differences between "sane" insanity acquittees
and civil committees, and then simply asserts that Louisiana cannot
deny Foucha the procedures it gives civil committees. A plurality
repeats this analysis in its cumulative equal protection section.
See
ante, at 84-86. As explained above, I believe that there
are legitimate differences between civil committees and insanity
acquittees, even after the latter have "become" sane. Therefore, in
my view, Louisiana has not denied Foucha equal protection of the
laws. Cf.
Jones v.
United States, 463 U. S. 354, 362, n. 10
(1983).
116
Court today ignores this well-established analytical framework.
First, the Court never explains whether we are dealing here with a
fundamental right, and, if so, what right. Second, the Court never
discloses what standard of review applies. Indeed, the Court's
opinion is contradictory on both these critical points.
As to the first point: The Court begins its substantive due
process analysis by invoking the substantive right to "[f]reedom
from bodily restraint."
Ante, at 80. Its discussion then
proceeds as if the problem here is that Foucha, an insanity
acquittee, continues to be
confined after recovering his
sanity,
ante, at 80-81; thus, the Court contrasts this case
to
United States v.
Salerno, 481 U. S. 739 (1987), a
case involving the confinement of pretrial detainees. But then,
abruptly, the Court shifts liberty interests. The liberty interest
at stake here, we are told, is
not a liberty interest in
being free "from bodily restraint," but instead the more specific
(and heretofore unknown) "liberty interest under the Constitution
in being freed from [lJ indefinite confinement
[2J in a mental facility." Ante, at 82 (emphasis
added). See also
ante, at 86-87 (O'CONNOR, J., concurring in
part and concurring in judgment). So the problem in this case is
apparently
not that Louisiana continues to confine insanity
acquittees who have "become" sane (although earlier in the opinion
the Court interprets our decision in
Jones as having held
that such confinement is unconstitutional, see
ante, at
77-78), but that under Louisiana law, "sane" insanity acquittees
may be held "indefinitely" "in a mental facility."
As to the second point: "A dispute regarding the appropriate
standard of review may strike some as a lawyers' quibble over
words, but it is not."
Metro Broadcasting, Inc. v.
FCC, 497 U. S.
547, 610 (1990) (O'CONNOR, J., dissenting). The standard of
review determines when the Due Process Clause of the Fourteenth
Amendment will override a State's substantive policy choices, as
reflected in its laws. The Court initially says that "[d]ue process
requires that the na-
117
ture of commitment bear some
reasonable relation to the
purpose for which the individual is committed."
Ante, at 79
(emphasis added). Later in its opinion, however, the Court states
that the Louisiana scheme violates substantive due process
not because it is not "reasonably related" to the State's
purposes, but instead because its detention provisions are not
"sharply focused" or "carefully limited," in contrast to the scheme
we upheld in
Salerno. Ante, at 81. Does that mean that the
same standard of review applies here that we applied in
Salerno, and, if so, what is that standard? The Court quite
pointedly avoids answering these questions. Similarly, JUSTICE
O'CONNOR does not reveal exactly what standard of review she
believes applicable, but appears to advocate a heightened standard
heretofore unknown in our case law.
Ante, at 87-88 ("It
might therefore be permissible for Louisiana to confine an insanity
acquittee who has regained sanity if ... the nature and duration of
detention were
tailored to reflect
pressing public
safety concerns related to the acquittee's continuing
dangerousness" (emphasis added)).
To the extent the Court invalidates the Louisiana scheme on the
ground that it violates some general substantive due process right
to "freedom from bodily restraint" that triggers strict scrutiny,
it is wrong-and dangerously so. To the extent the Court suggests
that Louisiana has violated some more limited right to freedom from
indefinite commitment in a mental facility (a right, by the way,
never asserted by Foucha in this or any other court) that triggers
some unknown standard of review, it is also wrong. I shall discuss
these two possibilities in turn.
1
I fully agree with the Court,
ante, at 80, and with
JUSTICE KENNEDY,
ante, at 90, that freedom from involuntary
confinement is at the heart of the "liberty" protected by the Due
Process Clause. But a liberty interest
per se is not the
same thing as a fundamental right. Whatever the exact scope of
118
the fundamental right to "freedom from bodily restraint"
recognized by our cases,12 it certainly cannot be defined at the
exceedingly great level of generality the Court suggests today.
There is simply no basis in our society's history or in the
precedents of this Court to support the existence of a sweeping,
general fundamental right to "freedom from bodily restraint"
applicable to
all persons in
all contexts. If
convicted prisoners could claim such a right, for example, we would
subject all prison sentences to strict scrutiny. This we have
consistently refused to do. See,
e. g., Chapman v.
United
States, 500 U. S.
453, 465
(1991).13
The critical question here, then, is whether
insanity
acquittees have a fundamental right to "freedom from bodily
12 The Court cites only
Youngberg v.
Romeo,
457 U. S. 307,
316 (1982), in support of its assertion that "[f]reedom from bodily
restraint has always been at the core of the liberty protected by
the Due Process Clause from arbitrary governmental action,"
ante, at 80. What "freedom from bodily restraint" meant in
that case, however, is completely different from what the Court
uses the phrase to mean here.
Youngberg involved the
substantive due process rights of an institutionalized, mentally
retarded patient who had been restrained
by shackles placed on
his arms for portions of each day. See 457 U. S., at 310, and
n. 4. What the Court meant by "freedom from bodily restraint,"
then, was quite literally freedom not to be physically strapped to
a bed. That case in no way established the broad "freedom from
bodily restraint" -apparently meaning freedom from
all
involuntary confinement-that the Court discusses today.
13 Unless the Court wishes to overturn this line of cases, its
substantive due process analysis must rest entirely on the fact
that an insanity acquittee has not been
convicted of a
crime. Conviction is, of course, a significant event. But I am not
sure that it deserves talismanic significance. Once a State proves
beyond a reasonable doubt that an individual has committed a crime,
it is, at a minimum, not obviously a matter of federal
constitutional concern whether the State proceeds to label that
individual "guilty," "guilty but insane," or "not guilty by reason
of insanity." A State may just as well decide to label its verdicts
"A," "B," and
"C." It is surely rather odd to have rules of
federal constitutional law turn entirely upon the
label
chosen by a State. Cf.
Railway Express Agency, Inc. v.
Virginia, 358
U. S. 434, 441 (1959) (constitutionality of state action should
not turn on "magic words").
119
restraint" that triggers strict scrutiny of their confinement.
Neither Foucha nor the Court provides any evidence that our society
has ever recognized any such right. To the contrary, historical
evidence shows that many States have long provided for the
continued institutionalization of insanity acquittees who remain
dangerous. See,
e. g., H. Weihofen, Insanity as a
Defense in Criminal Law 294-332 (1933); A. Goldstein, The Insanity
Defense 148-149 (1967).
Moreover, this Court has
never applied strict scrutiny to
the substance of state laws involving involuntary confinement of
the mentally ill, much less to laws involving the confinement of
insanity acquittees. To the contrary, until today we have subjected
the substance of such laws only to very deferential review. Thus,
in
Jackson v.
Indiana, 406 U. S. 715, 738
(1972), we held that Indiana's provisions for the indefinite
institutionalization of incompetent defendants violated substantive
due process because they did not bear any "reasonable" relation to
the purpose for which the defendant was committed. Similarly, in
O'Connor v.
Donaldson, 422 U. S. 563 (1975), we
held that the confinement of a nondangerous mentally ill person was
unconstitutional
not because the State failed to show a
compelling interest and narrow tailoring, but because the State had
no legitimate interest whatsoever to justify such
confinement. See
id., at 575-576. See also
id., at
580 (Burger, C. J., concurring) ("Commitment must be justified on
the basis of a
legitimate state interest, and the reasons
for committing a particular individual must be established in an
appropriate proceeding. Equally important, confinement must cease
when those reasons no longer exist" (emphasis added)).
Similarly, in
Jones, we held (in addition to the
procedural due process holdings described above) that there was no
substantive due process bar to holding an insanity acquittee beyond
the period for which he could have been incarcerated if convicted.
We began by explaining the standard for our analysis: "The Due
Process Clause 'requires that the nature
120
and duration of commitment bear some
reasonable relation
to the purpose for which the individual is committed.'" 463 U. S.,
at 368 (emphasis added) (quoting
Jackson, supra, at 738). We
then held that
"[i]n light of the congressional purposes
underlying commitment of insanity acquittees [in the District
of Columbia,]" which we identified as treatment of the insanity
acquittee's mental illness and protection of the acquittee and
society, "petitioner clearly errs in contending that an acquittee's
hypothetical maximum sentence provides the constitutional limit for
his commitment." 463 U. S., at 368 (emphasis added). Given that the
commitment law was reasonably related to Congress' purposes, this
Court had no basis for invalidating it as a matter of substantive
due process.
It is simply wrong for the Court to assert today that we "held"
in
Jones that "'the committed acquittee is entitled to
release when he has recovered his sanity or is no longer
dangerous.' "
Ante, at 77 (quoting
Jones, 463 U. S.,
at 368).14 We specifically noted in
Jones that
no
issue regarding the standards for the release of insanity
acquittees was before us.
Id., at 363, n. 11. The question
we were answering in the part of
Jones from which the Court
quotes was whether it is permissible to hold an insanity acquittee
for a period longer than he could have been incarcerated if
convicted,
not whether it is permissible to hold him once he
becomes "sane." As noted above, our substantive due process
analysis in
Jones was straightforward: Did the means chosen
by Congress (commitment of insanity acquittees until
14 If this were really a "holding" of
Jones, then I am at
a loss to understand JUSTICE O'CONNOR'S assertion that the Court
today does
not hold "that Louisiana may never confine
dangerous insanity acquittees after they regain mental health."
Ante, at 87. Either it is true that, as a matter of
substantive due process, an insanity acquittee is "'entitled to
release when he has recovered his sanity,'"
ante, at 77
(quoting
Jones, 463 U. S., at 368), or it is not. The Court
apparently cannot make up its mind.
121
they have recovered their sanity or are no longer dangerous)
reasonably fit Congress' ends (treatment of the acquittee's mental
illness and protection of society from his dangerousness)? 15
In its arguments before this Court, Louisiana chose to place
primary reliance on our decision in
United States v.
Salerno, 481
U. S. 739 (1987), in which we upheld provisions of the Bail
Reform Act of 1984 that allowed
limited pretrial detention
of criminal suspects. That case, as the Court notes,
ante,
at 81-83, is readily distinguishable. Insanityacquittees, in sharp
and obvious contrast to pretrial detainees, have
had their
day in court. Although they have not been convicted of crimes,
neither have they been exonerated, as they would have been upon a
determination of "not guilty"
simpliciter. Insanity
acquittees thus stand in a fundamentally different position from
persons who have not been adjudicated to have committed criminal
acts. That is what distinguishes this case (and what distinguished
Jones) from
Salerno and
Jackson v.
Indiana,
supra. In
Jackson, as in
Salerno, the State had
not proved beyond a reasonable doubt that the accused had committed
criminal acts or otherwise was dangerous. See
Jones, supra,
at 364, n. 12. The Court disregards this critical distinction, and
apparently deems applicable the same scrutiny to pretrial de-
15 As may be apparent from the discussion in text, we have not
been entirely precise as to the appropriate standard of review of
legislation in this area. Some of our cases
(e. g.,
O'Connor v.
Donaldson, 422 U. S. 563 (1975))
have used the language of rationality review; others
(e.
g., Jackson v.
Indiana, 406 U. S. 715 (1972))
have used the language of "reasonableness," which may imply a
somewhat heightened standard; still others
(e. g.,
Jones) have used the language of both rationality and
reasonableness. What
is clear from our cases is that the
appropriate scrutiny is highly deferential, not strict. We need not
decide in this case which precise standard is applicable, since the
laws under attack here are at the very least reasonable.
122
tainees as to persons determined in a judicial proceeding to
have committed a criminal act.16
If the Court indeed means to suggest that
all
restrictions on "freedom from bodily restraint" are subject to
strict scrutiny, it has (at a minimum) wrought a revolution in the
treatment of the mentally ill. Civil commitment as we know it would
almost certainly be unconstitutional; only in the rarest of
circumstances will a State be able to show a "compelling interest,"
and one that can be served in no other way, in involuntarily
institutionalizing a person. All procedures involving the
confinement of insanity acquittees and civil committees would
require revamping to meet strict scrutiny. Thus, to take one
obvious example, the
automatic commitment of insanity
acquittees that we expressly upheld in
Jones would be
clearly unconstitutional, since it is inconceivable that such
commitment of persons who may well
presently be sane
and nondangerous could survive strict scrutiny. (In
Jones,
of course, we applied no such scrutiny; we upheld the practice not
because it was justified by a compelling in-
16 The Court asserts that the principles set forth in this
dissent necessarily apply not only to insanity acquittees, but also
to convicted prisoners. "JUSTICE THOMAS' rationale for continuing
to hold the insanity acquittee would surely justify treating the
convicted felon in the same way, and if put to it, it appears that
he would permit it."
Ante, at 83, n. 6. That is obviously
not so. If Foucha had been convicted of the crimes with which he
was charged and sentenced to the statutory maximum of 32 years in
prison, the State would not be entitled to extend his sentence at
the end of that period. To do so would obviously violate the
prohibition on
ex post facto laws set forth in Art. I, § 10,
cl. 1. But Foucha was not sentenced to incarceration for any
definite period of time; to the contrary, he pleaded not guilty by
reason of insanity and was ordered institutionalized
until he
was able to meet the conditions statutorily prescribed for his
release. To acknowledge, as I do, that it is constitutionally
permissible for a State to provide for the continued confinement of
an insanity acquittee who remains dangerous is obviously quite
different than to assert that the State is allowed to confine
anyone who is dangerous for as long as it wishes.
123
terest, but because it was based on reasonable legislative
inferences about continuing insanity and dangerousness.)
2
As explained above, the Court's opinion is profoundly ambiguous
on the central question in this case: Must the State of Louisiana
release Terry Foucha now that he has "regained" his sanity? In
other words, is the defect in Louisiana's statutory scheme that it
provides for the confinement of insanity acquittees who have
recovered their sanity, or instead that it allows the State to
confine sane insanity acquittees (1) indefinitely (2) in a mental
facility? To the extent the Court suggests the former, I have
already explained why it is wrong. I turn now to the latter
possibility, which also is mistaken.
To begin with, I think it is somewhat misleading to describe
Louisiana's scheme as providing for the "indefinite" commitment of
insanity acquittees. As explained above, insanity acquittees are
entitled to a release hearing every year at their request, and at
any time at the request of a facility superintendent. Like the
District of Columbia statute at issue in
Jones, then,
Louisiana's statute provides for "indefinite" commitment only to
the extent that an acquittee is unable to satisfy the substantive
standards for release. If the Constitution did not require a cap on
the acquittee's confinement in
Jones, why does it require
one here? The Court and JUSTICE O'CONNOR have no basis for
suggesting that either this Court or the society of which it is a
part has recognized some general fundamental right to "freedom from
indefinite commitment." If that were the case, of course,
Jones would have involved strict scrutiny and is wrongly
decided.
Furthermore, any concerns about "indefinite" commitment here are
entirely hypothetical and speculative. Foucha has been confined for
eight years. Had he been convicted of the crimes with which he was
charged, he could have been incar-
124
cerated for 32 years. See La. Rev. Stat. Ann. §§ 14:60, 14:94
(West 1986). Thus, I find quite odd JUSTICE O'CONNOR'S suggestion,
ante, at 89, that this case might be different had
Louisiana, like the State of Washington, limited confinement to the
period for which a defendant might have been imprisoned if
convicted. Foucha, of course, would be in precisely the same
position today-and for the next 24 years-had the Louisiana statute
included such a cap. Thus, the Court apparently finds fault with
the Louisiana statute
not because it has been applied to
Foucha in an unconstitutional manner, but because the Court can
imagine it being applied to
someone else in an
unconstitutional manner. That goes against the first principles of
our jurisprudence. See,
e. g., Salerno, 481 U. S., at 745
("The fact that [a detention statute] might operate
unconstitutionally under some conceivable set of circumstances is
insufficient to render it wholly invalid, since we have not
recognized an 'overbreadth' doctrine outside the limited context of
the First Amendment").17
Finally, I see no basis for holding that the Due Process Clause
per se prohibits a State from continuing to confine in a
"mental institution" -the federal constitutional definition of
which remains unclear-an insanity acquittee who has recovered his
sanity. As noted above, many States have long provided for the
continued detention of insanity acquittees who remain dangerous.
Neither Foucha nor the Court present any evidence that these States
have traditionally transferred such persons from mental
institutions to other detention facilities. Therefore, there is
simply no basis for this Court to recognize a "fundamental right"
for a sane insanity acquittee to be transferred out of a mental
facility. "In an attempt to limit and guide interpretation of the
[Due Process] Clause, we have insisted not merely that the
interest
17 I fully agree with JUSTICE O'CONNOR,
ante, at 88, that
there would be a serious question of rationality had Louisiana
sought to institutionalize a sane insanity acquittee for a period
longer than he might have been imprisoned if convicted. But that is
simply not the case here.
125
denominated as a 'liberty' be 'fundamental' (a concept that, in
isolation, is hard to objectify), but also that it be an interest
traditionally protected by our society."
Michael H. v.
Gerald D., 491
U. S. 110, 122 (1989) (plurality opinion).
Removing sane insanity acquittees from mental institutions may
make eminent sense as a policy matter, but the Due Process Clause
does not require the States to conform to the policy preferences of
federal judges. "The Court is most vulnerable and comes nearest to
illegitimacy when it deals with judge-made constitutional law
having little or no cognizable roots in the language or design of
the Constitution."
Bowers, 478 U. S., at 194. I have no idea
what facilities the Court or JUSTICE O'CONNOR believe the Due
Process Clause mandates for the confinement of sane-butdangerous
insanity acquittees. Presumably prisons will not do, since
imprisonment is generally regarded as "punishment." Maya State
designate a wing of a mental institution or prison for sane
insanity acquittees? May a State mix them with other detainees?
Neither the Constitution nor our society's traditions provide any
answer to these questions.18
3
"So-called 'substantive due process' prevents the government
from engaging in conduct that 'shocks the conscience,'
Rochin v.
California, 342 U. S. 165, 172
(1952), or interferes
18 In particular circumstances, of course, it may be
unconstitutional for a State to confine in a mental institution a
person who is no longer insane. This would be a different case had
Foucha challenged specific conditions of confinement-for instance,
being forced to share a cell with an insane person, or being
involuntarily treated after recovering his sanity. But Foucha has
alleged nothing of the sort-all we know is that the State continues
to confine him in a place called the Feliciana Forensic Facility.
It is by no means clear that such confinement is
invariably
worse than, for example, confinement in a jail or other detention
center-for all we know, an institution may provide a quieter, less
violent atmosphere. I do not mean to suggest that that is the
case-my point is only that the issue cannot be resolved in the
abstract.
126
with rights 'implicit in the concept of ordered liberty,'
Palko v.
Connecticut, 302 U. S. 319, 325-326
(1937)."
Salerno, supra, at 746. The legislative scheme the
Court invalidates today is, at the very least, substantively
reasonable. With all due respect, I do not remotely think it can be
said that the laws in question "offen[d] some principle of justice
so rooted in the traditions and conscience of our people as to be
ranked as fundamental."
Snyder v.
Massachusetts,
291 U. S. 97, 105
(1934). Therefore, in my view, this Court is not entitled, as a
matter of substantive due process, to strike them down.
I respectfully dissent.
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