Lead Opinion
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.
1 — l
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
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,
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.
II
Addington v. Texas,
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.
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,
Second, if Foueha can no longer be held as an insanity ac-quittee 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,
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,
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,
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.
Salerno does not save Louisiana’s detention of insanity ac-quittees 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
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.
“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.
It should be apparent from what has been said earlier in this opinion that the Louisiana statute also discriminates
Furthermore, in civil commitment proceedings the State must establish the grounds of insanity and dangerousness permitting confinement by clear and convincing evidence. Addington,
For the foregoing reasons the judgment of the Louisiana Supreme Court is reversed.
So ordered.
Notes
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.
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 (6) 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.
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.
Justice 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
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.”
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.
Justice 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,”
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 (ALI) 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
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 corollary— the 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
Concurrence Opinion
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
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,
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,
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
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
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
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.
Dissenting Opinion
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,
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
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,
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,
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:
“Tn 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, any one 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. 568.1 (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,
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
The majority’s failure to recognize the criminal character of these proceedings and its concomitant standards of proof leads it to conflate the standards for civil and criminal commitment in a manner not permitted by our precedents. O’Connor v. Donaldson,
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
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
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,
“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).
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,
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 La-Fave & Scott §4.1, at 427-428; others have adopted a test proposed as part of the Model Penal Code, see ibid.; and still
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,
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 inca-pacitative 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,
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,
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.
Because the majority conflates the standards for civil and criminal commitment, treating this criminal case as though
Dissenting Opinion
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.
The Court errs, in large part, because it fails to examine in detail the challenged statutory scheme and its application in this ease. 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,
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
“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).
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).
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),
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.
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,
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,
“[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 ac-quittees, 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, 33'4,
Furthermore, the Federal Constitution does not require a State to “ignore the danger of ‘calculated abuse of the insanity defense.’” Warren v. Harvey,
“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. . . . [Commitment 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.
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.
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,
In striking down Louisiana’s scheme as a violation of substantive rights guaranteed by the Due Process Clause, the
As to the first point: The Court begins its substantive due process analysis by invoking the substantive right to “[freedom 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,
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,
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
The critical question here, then, is whether insanity ac-quittees have a fundamental right to “freedom from bodily
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,
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
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,
In its arguments before this Court, Louisiana chose to place primary reliance on our decision in United States v. Salerno,
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
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
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
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,
3
“So-called ‘substantive due process’ prevents the government from engaging in conduct that ‘shocks the conscience,’ Rochin v. California,
I respectfully dissent.
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. Fou-cha 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.
Article 664 provides in pertinent part:
“When a defendant is found not guilty by reason of insanity in any [non-capital] 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 law; however, the assignment of reasons shall not delay the implementation of judgment.”
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.”
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 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.”
Article 656 provides:
“A. Upon receipt of the superintendent’s report, filed in conformity with Article 665, 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.”
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 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.”
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
The relevant provision of the Model Penal Code, strikingly similar to Article 667 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).
See Cal. Penal Code Ann. § 1026.2(e) (West Supp. 1992) (insanity aequit-tee 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 aequittee shall be kept institutionalized until court “is satisfied that the public safety will not be endangered by his release”); Haw. Rev. Stat. § 704-415 (1985) (insanity aequittee not entitled to release until court satisfied that aequittee “may safely be discharged or released”); Iowa Rule Crim. Proc. 21.8(e) (insanity aequittee 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 aequittee 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 aequittee not entitled to release until he proves that he “may safely be 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 offinsanity 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.
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.
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,
The Court cites only Youngberg v. Romeo,
Unless the Court wishes to overturn this line of cases, its substantive due process analysis must rest entirely on the fact that an insanity acquit-tee 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,
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,
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,
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.
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.
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.