Hill v. StateHill v. State
In 1965 Thomas Hill, Jr. was indicted for first degree murder in a particularly repulsive slaying of a Liberty County woman. His psychosis rendered him unfit for trial, so Circuit Judge Ben C. Willis — whose familiarity with the case and with Hill extends from 1965 to the present — committed Hill to the Florida State Hospital at Chattahoochee. In 1972 Hill had recovered sufficiently for trial and, on his waiver of a jury, Judge Willis found him not guilty by reason of insanity and recommitted him to Chattahoochee.
Hill‘s psychosis is now in remission and under medicinal control in the protected environment to which Hill is involuntarily confined. The evidence shows, and Judge Willis found, that Hill if released would probably engage in “nothing but peaceful conduct” if he continued to take his medicine and regularly saw a doctor at Chattahoochee or a community mental health center. A testifying psychiatrist believes that sufficient day-to-day supervision could be provided by Hill‘s family, who with family friends have offered to assure — insofar as they have power to assure — that Hill will take his medicine and keep his medical appointments. Members of the victim‘s family and other Liberty Countians testified that they have no objection to Hill‘s release under the circumstances. Nevertheless, Judge Willis denied Hill‘s petition for release, stating:
It is not enough that the defendant is not likely to engage in violence or destruction. It is insufficient that the probabilities of peaceful conduct outweigh, even substantially, the contrary.
In this case the defendant, while in a psychotic condition, perpetrated a most brutal homicide and his actions were of such depravity as to exhibit violent, destructive
and bestial qualities with no inhibitions whatsoever. That such psychosis existed was confirmed by medical experts and was the basis of his commitment to the hospital for treatment rather than to be convicted as a murderer. Now, this psychotic condition is merely in remission, held there by regular medication and constant supervision. A loss of remission, either by failure of the medication to continue effective, by failure to properly administer it, or by any other factor which would produce that result would expose the members of the public to unspeakable horrors, death and destruction. Though the probabilities are that his release will result in nothing but peaceful conduct, the possibilities that it will be tragic are more than merely speculative. The Court feels that these possibilities are of sufficient gravity to dictate that the defendant be retained in institutional care and control. (Emphasis added.)
This case thus renews the debate over standards for the release to society of the оnce criminally insane: those who for insanity alone were acquitted of violent crimes, who were judicially committed to hospitalization until the danger of their being at liberty shall have passed, and who eventually progress in confinement until psychotic symptoms are remitted. The probabilities are that, if released, Hill can and would live among his family and friends in Liberty County, work in his father‘s sawmill, take his medicine, regularly visit the community mental health center in Panama City, and so pass his life peaceably. The broad question is, Who shall bear the small but potentially grave risk that Hill‘s remission is dependent on the constancy of his present regime, or on medication which Hill at liberty may neglect? Characteristically, the law does not address such a question all at once, but separates it into manageable parts, which are:
First, is the determinative standard whether Hill if released would be manifestly dangerous to others, or is it rather whether he would be likely to injure another? Compare
Second, on whom, Hill or the state, is the burden of proof; and what is the necessary quality of proof? The risk of nonpersuasion falls on the acquitee; and grounds for his release must be shown by a preponderance of the evidence. A criminal acquitee is not denied equal protection by allocating the burden of proof differently than in civil commitment cases where, arguably, grounds for continued commitment must be shown by clear and convincing evidence. See In re Beverly, 342 So.2d 481, 488 (Fla. 1977).
Third, wherein was the proof lacking that Hill is not likely to injure others and is entitled to release? We find that the quality of proof on the issue was inadequate, but that, given its apparent effect, the proof lacked only an impossible guaranty that Hill‘s illness would remain in remission.
Standard for release
Rule 3.460 authorizes commitment of one acquitted for insanity if his release would be “manifestly dangerous to the peace and safety of the people.”2 But the Baker Act,
First, likely-to-injure contemplates physical or emotional injury,4 whereas manifestly dangerous may include also threatened injury to property or other societal interests.5 Considering types of dangerousness alone, and disregarding probabilities of it, as many as ten substandards can comfortably be housed under the expansive roof of dangerousness.6
Second, likely-to-injure requires a more exact prediction of harm; it connotes a probability of injury. Manifestly dangerous does not. One who is likely to injure another is surely dangerous; but one who is
The District of Columbia Code contains the same dichotomy — dangerousness versus likely-to-injure — that is created by criminal Rule 3.460 and
In spite of its relative vagueness, or perhaps because of its flexibility, the dangerousness test, including minor variations such as a likelihood of danger (not injury),8 is commonly used by the other states for the commitment and release of insanity acquitees.9
In Florida proceedings for the commitment or release of insanity acquitees, the Baker Act‘s likely-to-injure standard now prevails over the manifestly dangerous standard of Rule 3.460. That may not be the final choice; but it is the current choice, and it seems to have been made by the Supreme Court when concentrating on other aspects of a fundamental dispute over legislative versus judicial prerogatives.
The Baker Act, as amended through 1975, did not simply provide a substantive standard for commitment and release different from the Rule 3.460 standard for insanity acquitees. The Act also provided independent administrative and civil court procedures for initial commitment and for commitment beyond six months.
Connors also reached beyond commitment questions to reassert paramount judicial authority over periodic evaluation and release of Rule 3.460 acquitees. Legislation in 1975 had added Section 394.467(5),11 requiring an acquitee‘s release after six months unless statutory grounds for continued commitment were found by a hearing examiner, or by a court overruling the hearing examiner. The Supreme Court, having held in Powell and in pre-Baker Act decisions that Rule 3.460 grants the committing court “continuing jurisdiction ... to detеrmine by subsequent hearing and order whether defendant [is] still manifestly dangerous to the public,” 306 So.2d at 116,12 stated in Connors that petitions for reexamination and release would be determined first and finally, not by a Baker Act hearing examiner, but by the committing court, and not according to a statutory timetable, but rather “at reasonably separated period intervals or on the suggestion of the custodial official.” 332 So.2d at 340. Thus implying if not explicitly demonstrating that Rule 3.460 is wholly procedural, Connors signaled that Rule 3.460 supersedes any inconsistent Baker Act provisions. The Court rejected the administrator‘s claim that “the statute supersedes the rule because of the substantive nature of the matter dealt with,” stating that Powell had held to the contrary. 332 So.2d at 339. The Powell Court had indeed rejected, without discussion, Justice Ervin‘s dissenting view that the Baker Act as it then existed, before the 1975 legislation, controlled over Rule 3.460.
Soon after deciding Connors, the Supreme Court more fully occupied its jurisdictional field by promulgating another rule governing the commitment, retention, and release of persons acquitted for insanity.
The Court committing the defendant shall at all times retain jurisdiction of the cause and shall make all determinations relative to continued hospitalization (other than the form of treatment) or release of the defendant. [
Fla.R.Crim.P. 3.210(e)(9) ]
While new Rule 3.210 fulfilled and formally expressed the Court‘s jurisdictional claim in Connors, the Rule also adopted Baker Act commitment standards both for those not competent to stand trial,
When a person tried for an offense shall be acquitted for the cause of insanity, if the Court shall then determine that the defendant presently meets the criteria set forth in Section 394.467(1), Florida Statutes (1975) the Court shall commit the defendant to the Department of Health and Rehabilitative Services for involuntary hospitalization, or shall order that he receive outpatient treatment at any other appropriate facility or service on an outpatient basis, or shall discharge the defendant. [
Fla.R.Crim.P. 3.210(e)(9) ]
The new Rule did not attempt to reconcile its adoption of the Baker Act‘s likely-to-injure standard with existing Rule 3.460‘s manifestly dangerous standard.
The lively jurisdictional dispute then escalated. Ignoring the Court‘s conciliatory gesture in adopting substantive Baker Act standards while insisting on judicially controlled procedures, the 1977 Legislature, with оne dissenting vote, exercised its Article V, Section 2(a), power to repeal new Rule 3.210 almost before it became effective.15 Chapter 77-312, Laws of Florida, extensively amended Chapter 394 and 921 to provide for trial court commitment of persons acquitted for insanity under the criteria of Section 394.467(1); for initial determination of release questions, under the same criteria, by Baker Act hearing examiners; for judicial review by the committing court of only those release orders which are contested administratively by the state attorney; and for de novo judge or jury trials, applying the same statutory criteria, in cases judicially reviewed.
Then the Supreme Court decided State ex rel. Boyd v. Green, 355 So.2d 789 (Fla. 1978). The Court held that Section 1 of Chapter 77-312 unconstitutionally removed the insanity issue from trials on the issue of criminal guilt, and struck down Section 10, which repealed Rule 3.210, as inseparable from the provisions held unconstitutional.16
If we correctly understand these events, they may be summarized as follows: (1) the Supreme Court held in Connors that judicial standards and procedures for commitment and release of acquitees, as stated by Rule 3.460, are impervious to legislative tampering except by outright repeal of Rule 3.460 under Article V, Section 2(a) of the Constitution;
Thus we conclude that the determinative test is whether Hill, if released, would be likely to injure himself or others.
It is not enough that the defendant is not likely to engage in violence or destruction. It is insufficient that the probabilities of peaceful conduct outweigh, even substantially, the contrary.
II.
Burden of proof; standard of proof
Hill urges that the equal protection clause of the United States Constitution requires that insanity acquitees be given the same procedural advantages as are afforded civil commitees in Baker Act proceedings, specifically that the state has the burden to justify his continued commitment by clear and convincing evidence.
The Supreme Court held, in In re Beverly, 342 So.2d 481 (Fla. 1977), that clear and convincing evidence satisfying Section 394.467(1) standards is necessary for involuntary hospitalization under the Baker Act. The Court had no occasion to decide, and did not decide, whether commitments when periodically reviewed must continually be justified by clear and convincing evidence. Regardless of how that question may be answered for civil commitees, the answer need not be the same for one who is committed on appropriate findings after an insanity acquittal. Beverly itself recognized that “[t]here is a differentiation between persons in need of mental treatment and persons who [but for incompetency] violated the criminal laws.” 342 So.2d at 488.
Although the mentally ill may be civilly committed on proof of mental illness and dangerous propensity, insanity acquitees are not committed without adjudication of both those elements and a recent criminal episode. The acquitee, but for his mental incompetence, is responsible for a criminal act. State ex rel. Boyd v. Green, 355 So.2d 789 (Fla. 1978).
A Florida verdict of not guilty by reason of insanity determines that there is reasonable doubt of the accused‘s competency at the time of the offense, but that there is no other reasonable doubt requiring his outright acquittal. See Byrd v. State, 297 So.2d 22 (Fla. 1974); French v. State, 266 So.2d 51 (Fla. 3d DCA 1972); Fla. Std. Jury Instr. (Crim.) 2.11(b) (2d ed. 1975). Because in Florida the criminally accused need not prove his incompetence by a preponderance of the evidence,17 a Florida verdict of not
The equal protection clause, as interpreted by the United States Supreme Court, does not require that the state treat insanity acquitees and civil commitees alike in allocating the burden of proof and fixing the standard of proof required on release petitions. Baxtrom v. Herold19 required protection for a prisoner, equal to that accorded civil committees, when involuntary hospitalization was sought near the end of his prison term. Humphrey v. Cady20 required protection for convicted criminals equal to that accorded civil commitees when involuntary hospitalization is sought beyond the maximum sentence term authorized for their crimes. And Jackson v. Indiana21 held that one accused of crime, whose incompetency prevents a trial, cannot be held indefinitely without compliance with civil standards and procedures. Those decisions do not lessen the distinction between an ordinary citizen, committed in civil proceedings for mental illness, and one who was duly committed after being relieved of criminal responsibility on account of mental illness. Society has a special interest in criminal acquitees. See Chase v. Kearns, 278 A.2d 132, 138 (Me. 1971):
The special interest which the public has acquired in the confinement and release of people in this exceptional class results from the fact that there has been а judicial determination that they have already endangered the public safety and their own as a result of their mental conditions as distinguished from people civilly committed because of only potential danger.
See also People v. Lally, supra n. 17; In re Franklin, supra n. 17; State v. Taylor, 158 Mont. 323, 491 P.2d 877 (1972), cert. denied, 406 U.S. 978, 92 S.Ct. 2428, 32 L.Ed.2d 677 (1972); State v. Warren, 169 Conn. 207, 363 A.2d 91 (1975); State v. Carter, 64 N.J. 382, 316 A.2d 449 (1974); and the prolific writings of the United States Court of Appeals for the District of Columbia.22
Neither Rule 3.210 nor the Baker Act allocates the burden of proving factual issues on an acquitee‘s petition for release. But the burden of proof, in the sense of a risk of nonpersuasion, is on the acquitee. It is he who asserts that conditions have changed; it should be presumed, in the absence of countervailing evidence, that the condition which justified the original hospitalization order has continued, e.g., Hixon v. State, 165 So.2d 436 (Fla. 2d DCA 1964); Horace v. Culver, 111 So.2d 670 (Fla. 1959); and there is general agreement that one who asserted his mental irresponsibility for a crime, winning hospitalization instead of jail or worse, should bear the burden of proving grounds for his release, e.g., Lynch v. Overholser, 369 U.S. 705, 715, 82 S.Ct. 1063, 1069-70, 8 L.Ed.2d 211, 218 (1962) (under the District of Columbia code).
A preponderance of the evidence is the standard of proof normally applicable in civil matters, Visingardi v. Tirone, 193 So.2d 601, 604 (Fla. 1967); Schoenrock v. Schoenrock, 202 So.2d 571, 573 (Fla. 2d DCA 1967), and is the degree of proof properly required for the release of insanity acquitees. People v. Lally, 19 N.Y.2d 27, 277 N.Y.S.2d 654, 224 N.E.2d 87 (1966); In re Franklin, 7 Cal.3d 126, 101 Cal. Rptr. 553, 496 P.2d 465 (1972); Hefley v. Texas, 480 S.W.2d 810 (Tex. Ct. App. 1972): Dixon v. Jacobs, 138 U.S.App.D.C. 319, 427 F.2d 589 (1970); State v. Krol, 68 N.J. 236, 344 A.2d 289, 303 n. 13 (1975). See also ALI Model Penal Code § 4.08(3); C. Hamann, supra n. 9 at 89. The duty to go forward with the evidence is another matter, to be addressed below; but the risk of nonpersuasion falls on the acquitee, and continued commitment is the result of a failure of proof that, if released, he would not be likely to injure others.
III
The record evidence supporting Hill‘s petition lacks only a guaranty of continued remission
Hill, represented by the Public Defender for the Second Circuit,23 presented seven witnesses at the November 1976 hearing: Dr. Rodriguez, who is a psychiatrist and Hill‘s attending physician at the hospital; the patient‘s father, aged 63, a Liberty County sawmill owner and operator; a cousin who had visited Hill at Chattahoochee over the years; the victim‘s husband and her son; and two of the 42 Liberty Countians, most of whom appeared at the hearing, who signed a statement supporting Hill‘s petition. An Assistant State Attorney cross-examined some of the witnesses but presented no additional evidence. The record also contains the hospital superintendent‘s report to the court in October 1971, when Hill was returned for trial, including a staff evaluation of Hill on his first admission in May 1965.
All of the contemporaneous evidence presented indicates that Hill‘s mental illness is in remission and that, as Judge Willis found, his return to Liberty County would probably “result in nothing but peaceful conduct.” Dr. Rodriguez had personally observed Hill for six months and he referred to Hill‘s medical record for an unstated period. The psychiatrist testified that Hill “is not actively hallucinating or having delusions and is in good contact with reality” and has “good insight” into his mental condition. He stated that Hill‘s illness is in “good remission,” that he has been on “very, very good behavior” and, according to the records, that he has “never had any acting-out behavior” at the hospital. Hill enjoys full “ground privileges.” At bedtime he takes 50 milligrams of Mellaril, a drug that inhibits psychomotor functions and so reduces the abnormal tendencies of psychosis.
Dr. Rodriguez testified that Hill is still in need of medication and psychiatric supervision, and that Hill, if released, would himself be capable of obtaining necessary treatment “as long as he stays in remission.” The psychiatrist testified that the hospital would “make up a release plan” if the court ordered Hill‘s release, and that the plan would provide for weekly or semi-weekly visits to a community mental health clinic. He emphasized that someone such as Hill‘s parents would have to assume responsibility for assuring that Hill takes his medication and keeps his medical appointments. He further testified:
If the mother and father are responsible, they could watch him closely and, if he shows any abnormal symptoms, they could take him to the hospital again or to the mental health clinic.
The psychiatrist declined to “guarantee” Hill‘s good behavior while at liberty:
Q. Doctor, do you feel that Thomas would have any problem taking his medication in the future?
A. In the hospital, no, but I could not guarantee it outside of the hospital.
.....
Q. And he needs psychiatric treatment?
A. At least an evaluation, because any patient who is schizophrenic could be acting out at any time.
The lay testimony indicated that Hill if released would live with his mother and father in Sumatra, and work in his father‘s mill; that his parents would support him financially and see that he takes his medicine and goes to the doctor; and that the victim‘s family and other residents in the community have no objection to Hill‘s coming home under his father‘s supervision.
Except for such nuances of apprehension as may be sensed in Dr. Rodriguez’ refusal to “guarantee” Hill‘s future attention to his medical needs, all of the contemporaneous evidence tends to prove that Hill, if released, would not be likely to injure himself or others. The only countervailing evidence before Judge Willis was the undeniably shocking record of a psychotic killing 14 years ago, some details of which were revealed in the staff conference notes of May 1965:
He killed a woman, shooting her from the back with a.30-.30 rifle, which belonged to his father. He alleged that the gun discharged accidentally, but he now admits that he killed her purposely because she used to treat him badly and wanted him to do things continuously. Immediately after he killed the woman he proceeded to have intercourse with the body... . The patient states the woman wrote him a threatening letter prior to this incident, stating that if he ever went again with ____ ____, she would drown him in the river... .
... He was found actively psychotic and disoriented as to place and time. The patient was inappropriate, inadequate, and was smiling and laughing for no apparent reason, had visual and auditory hallucinations. These hаllucinations go back at least three or four years and he heard women‘s voices as well as men‘s. The patient showed some disturbance of thought, associations were loose, he was very suggestible, and he had no insight whatever into his condition. His judgment was poor.
Reflecting on this record, one appreciates how poorly any general formulation of a release standard serves to answer the ultimate question before circuit judges in these cases: What kind of evidence, and how much of it, is required to show a probability of peaceful conduct which is sufficient to overcome the incalculable possibility, as Judge Willis put it, of “unspeakable horrors, death and destruction“? Whether the substantive test is likely-to-injure or manifest danger, and whether the proof standard is a preponderance of the evidence or something else, the final question almost defies analysis in conventional terms. That is because the scales balance different substances in their opposite trays: Hill‘s former and potential dangerousness cannot be quantified for comparison with the substantial evidence that his illness is in remission and is likely to remain so. Judge Bazelon‘s figure is apt: the acquitee‘s violent episode
is likely to weigh against nominally competing considerations the way a wolf weighs against a sheep in the same scales: even if the sheep is heavier when weighed separately, somehow the wolf always prevails when the two are weighed together. Keeping dangerousness on a taut leash is especially difficult where there is danger of murder, since the danger is admittedly grave and since its improbability, which theoretically discounts its gravity, is exceedingly difficult to quantify.
Moreover, once a man has shown himself to be dangerous, it is all but impossible for him to prove the negative that he is no longer a menace.24
Judge Willis’ order characterizes the likelihood of psychotic conduct by Hill as “more than merely speculative” but nevertheless as a possibility, not a probability. That possibility is related to a loss of remission “either by failure of the medication to continue effective, by failure to properly administer it, or by any other factor which would produce that result.”25 Judge Willis correctly reasoned that the possibility gains “gravity,” weight but no more likelihood, from Hill‘s psychotic killing in 1964, and from that alone.
It is apparent, therefore, that Hill is now denied liberty because he has not satisfactorily proved matters which in confinement he cannot prove. There is no evidence that small daily doses of Mellaril, which for at least six years have been effective to remit Hill‘s aberrant tendencies, would in another environment become impotent. Any implication to that effect in the order is speculative. Hill apparently has demonstrated as much moral responsibility and autonomy as he can demonstrate in a confinement which by design requires little responsibility and autonomy. He apparently takes his daily medication as willingly as he can will to take it under a regimen that would enforce medication if he refused or neglected it. He apparently is as receptive to psychiatric observation and counseling as he can be in a confinement where, like it or not, he would be subjected to it. Hill‘s family and their friends have given assurances, with apparent earnestness, that they will “see to” Hill‘s continued daily medication and psychiatric supervision, semi-weekly if necessary. In short, Hill‘s proof of entitlement to release apparently fails, if it fails, because no one — not he, nor his family, nor his physicians — can guarantee continued remission.
We are bound to recognize ungrudgingly that Hill long ago was absolved of criminal responsibility. Though he killed, he was “unable to form the requisite intent” to commit murder.26 For punishment‘s sake, or to deter others, Hill could not then and cannot now be imprisoned for a moment, even if the prison were a hospital idyllic except for walls and fences. Hill is not lawfully hospitalized to pacify someone‘s distress over his acquittal for insanity. He is not lawfully detained on the theory, however beneficent, that he is in need of treatment.27 The government‘s sole legitimate interest in Hill is protecting others from a likelihood of injury that would result from his being at liberty. Irrespective, then, of the enormity of Hill‘s 1964 act, a judicial decision relieving Hill of absolute confinement must be made at the moment when a preponderance of all the reasonably available evidence shows that in his release there is no longer a likelihood of injury to others as a result of mental illness. Under this standard, a court of law cannot extend Hill‘s confinement until some psychiatrist of a bolder school than Dr. Rodriguez will utter a fatuous guaranty; or until the memory of Hill‘s violence has satisfactorily faded; or until time removes all risks by removing Hill or by performing on him, as inevitably it will, a lobotomy by isolation.
IV
Proceedings on remand
It would not do for us to remand this case without guidance for its further consideration and resolution. Though we are confident that what we shall say will not entirely remove the difficulty of the court‘s task in resolving the competing values of Hill‘s liberty and the public‘s entitlement to protection, it is appropriate that we dissipate some of the responsibility now devolving on the committing judge alone. We do that by assuming some of the responsibility ourselves, and by prescribing two procedural standards, hitherto unstated in Florida law but not, as far as we know, inconsistent with the Supreme Court‘s rules and decisions affecting the retention and release of insanity acquitees. One is a general evidentiary standard which relieves the acquitee of coming forward with all the pertinent evidence and imposes duties on the state which are to be enforced by the committing judge. The other authorizes conditional release of eligible insanity acquitees, and so ameliorates the conflict between the committing court‘s desire for a guaranty and the acquitee‘s inability to give it.
A. Our authority
We must consider whether a district court of appeal has power to authorize and require remedies which implicate the circuit court, the public prosecutor and defender, and agencies of the executive branch. We do not casually assume that power. This court has neither the discretion of a circuit judge nor the rulemaking authority of the Supreme Court. Yet there is a hiatus between the procedures required to resolve these cases properly and those that have thus far been provided by rules and decisions of the Supreme Court. In that hiatus the acquitee‘s fundamental rights are neglected; their vindication is postponed.
Powell, Connors, and Boyd make clear that insanity acquitees committed from the criminal justice system are special wards of the judiciary, for whom the circuit courts and the Supreme Court have primary and ultimate responsibility, respectively. While the rationale of the Supreme Court‘s exclusive jurisdictional claim is not yet entirely clear — there is some difficulty in regarding commitment and release standards as wholly procedural, not in part substantive — the jurisdictional claim has been made and, for our purposes, it is established. We assume that jurisdiction has not been established merely to keep insanity acquitees locked away until the committing judge is moved, like some potentate, to release them; that the judicial system‘s monitoring responsibilities are to be carried out in a way that visibly serves the rule of law; and therefore that this court‘s review powers are implicated.
Our lack of rulemaking power is no impediment. The Supreme Court has prescribed procedures essential to the rule of law not only by its constitutional rulemaking power, in which function we do not participate, but also by decision, in which we do. E.g., State v. Harris, 356 So.2d 315 (Fla. 1978). The courts of other states have by decision established needed procedures for the detention and release of criminal acquitees, including conditional release procedures affecting the executive branch. E.g., State v. Carter, 64 N.J. 382, 391-98, 316 A.2d 449, 454-58 (1974):
[T]he Legislature, in omitting a specific authorizаtion for court sanctioned conditional release, was merely recognizing the court‘s inherent power to fashion appropriate remedies.
The fact that the Legislature has acted to provide a remedy does not mean that the judicial branch is limited to the boundary lines of strict legislative expression in fashioning or denying remedies in a particular case... . The court‘s power to fashion remedies in the realm of criminal justice is unquestioned. At common law, courts of criminal jurisdiction had the power to suspend sentences... . Probation has a deep-rooted common law basis... . It follows that a statute neglecting to mention probation would certainly not preempt the court‘s ability to provide for it... .
.....
Conditional releases accompanied by judicial and psychiatric supervision can be utilized under appropriate circumstances to keep a tight rein on possibly inaccurate and divergent psychiatric prediction. The alternative is to condemn all those who are not utterly free of an underlying mental illness to lifelong commitment in a mental hospital, regardless of the degree to which they can function and exercise control over themselves in society and regardless of the therapeutic effect of exposure to the outside world. In effect, denying the possibility of conditional release is “tantamount to an elaborate mask for preventive detention” of the mentally ill. [footnotes and citations omitted]
We therefore consider that this court shares in the judiciary‘s power by decision to fashion standards and remedies in release proceedings.
B. The evidence required
Valuable testimony was received from Hill‘s family and friends who described, and who themselves evidenced, the Liberty County environment into which Hill would move if released: his homelife, associations, work, financial support, arrangements for medication and psychiatric observation, and so on. The presence of those witnesses enabled Judge Willis to form at least an impression, not explicitly described in the order before us, of the character and reliability of the persons on whom Hill and society would depend for support if he were released. Such witnesses are essential to any meaningful consideration of an acquitee‘s release petition. They should be searchingly examined and cross-examined. Their education, experience, skills, and interest in the patient are obviously important considerations. The availability of family or friends for training in the recognition of psychotic symptoms,28 and the availability of such training to them at Florida State Hospital or a community mental health clinic, are legitimate areas for inquiry. Since it was proposed that Hill return to the community in which the psychosis erupted, enough shоuld be learned of the particular situation in which it occurred to predict the likelihood of its recurrence. See State v. Krol, 68 N.J. 236, 260, 344 A.2d 289, 302 (1975).
Regrettably, this record‘s only indication of the hospital‘s capacity to formulate a comprehensive release plan is Dr. Rodriguez’ testimony that, if the court ordered Hill released, the Hospital‘s “social services” arm “would make up a release plan.” The public defender inquired whether the court wished to review and evaluate that plan before deciding the release issues, and Judge Willis expressed interest in reviewing such a plan “if they are prepared to do that,” but the record does not indicate what, if anything, ensued. A release petition should not be considered without a systematic proposal by the Department of Health and Rehabilitative Services for follow-up psychiatric care. The plan should realistically evaluate HRS and family or community resources for follow-up care, and it should propose means for verifying to the court that such care is being provided.29 Release plans should be submitted to
The Baker Act provides for administrative hearings on petitions affecting commitments of acquitees, supra n. 14, and
The evidence in this record of Hill‘s past and present psychiatric condition and propensities, by far the most important subjects of the court‘s inquiry, can best be characterized as sparse. No one testified that Hill is still psychotic, incurably or otherwise. That he is still “schizophrenic” is indicated only in an oblique reference by Dr. Rodriguez.31 The single psychiatrist who testified had personally observed Hill for only six months. That is an inadequate offering on such serious issues, regardless of Dr. Rodriguez’ familiarity with the medical record — which itself was not, but should be, offered and explained.
Expert psychiatric testimony is essential in these proceedings. But the committing court‘s determination of release issues cannot be dictated by such testimony. When determining the accused‘s competency at the time of an offense, the trial judge or jury is not bound to accept unrebutted psychiatric opinions when there is other evidence of the accused‘s competence.32 For stronger reasons, judges weighing the complex
It should be emphasized that while courts in determining dangerousness should take full advantage of expert testimony ..., the decision is not one that can be left wholly to the technical expertise of the psychiatrists and psychologists. The determination of dangerousness involves a delicate balancing of society‘s interest in protection from harmful conduct against the individual‘s interest in personal liberty and autonomy. This decision, while requiring the court to make use of the assistance which medical testimony may provide, is ultimately a legal one, not a medical one.
In these as in other cases, lay testimony on an issue may be more weighty than that of experts. The court may therefore reasonably require testimony by nurses and hospital personnel whose observation of the patient has been more constant, in less guarded circumstances, or simply from another vantage point.35 Hill apparently has been confined to Chattahoochee 24 hours a day, 365 days a year, for 13 years. More substantial testimony concerning his behavior is available than one psychiatrist‘s summary observation that, according to “the record” and six months’ personal observation, Hill has been on “very, very good behavior” and “has never had any acting-out behavior.” The testimony concerning Hill‘s 1976 condition is disturbingly similar to the equally general, if even more sanguine, description of his condition by another physician in 1971, before Hill was acquitted and committed.36
C. The court‘s access to evidence
The foregoing discussion of evidentiary requirements is not offered as an impertinent short-course on trial tactics for public defenders and other acquitees’ counsel. It is rather an approximation, in terms of the particular facts of this case, of a standard for necessary evidence in all cases. A substantial failure to meet that standard should result, not in denial of the acquitee‘s petition and his further indefinite detention, but in further proceedings to lay the missing evidence before the committing judge. Stated in familiar terms, the burden of going forward with the evidence cannot and does not lie wholly on the committed acquitee. It is idle to speak of imposing the burden of proof, in the sense of a duty to produce all the convincing evidence, on one who is segregated from society because of mental illness. It would be more candid and humane to say instead that the state‘s policy is to continue his commitment until a court is mоved to release him by considerations outside the law and the evidence.
The state has a responsibility to continue justified commitments and to terminate those that are not. The release of one in confinement for mental illness, when he is entitled to it under the law and evidence, is not like probation of a convict, granted as a matter of grace; nor like parole, which excuses confinement for the balance of a certain term. Release proceedings are therefore not a matter of adversaries finding, preparing, and presenting “my witness” and “your witness.” The state‘s agencies, especially HRS and its hospital administrators, share with the patient the responsibility to acquire and produce the evidence. The evidence is largely in the state‘s possession: the treating physicians, the nurses, the orderlies and aides, the medical record-keepers, the release planners, the staffs of community mental health centers — all are public servants whose responsibility in release proceedings is to produce relevant evidence in their possession for consideration by the court.
The court has responsibility and authority to require that the evidence be brought forward, in much the same way the court has power, inherently if not by statute, to order the gathering and production of presentence investigation material in criminal cаses. State v. Carter, supra. Measures for identifying and obtaining the necessary evidence will vary with the court, the case, and the availability of substantial assistance by counsel. Needed evidence may be acquired by conventional subpoenas, or by direct orders to the appropriate agencies. Whether affected state agencies are considered parties, witnesses, or court advisors, the result is the same: they are subject to the court‘s orders reasonably requiring that they gather and produce evidence needed by the court on the issues at hand. See United States v. Ecker, 177 U.S.App.D.C. 31, 46, 543 F.2d 178, 193 (1976):
The ... court, the hospital, the patient, and the government share an obligation to elucidate and explore all the relevant facts.
We do not intend that the committing court shall automatically mobilize a fact-gathering effort and hold a full evidentiary hearing whenever an acquitee files a release petition. A seriously ill and dangerous
When all affected parties and agencies have responded to the court‘s needs in an appropriate way, no order granting or denying a release petition should suffer, as this one does, by an absence of evidence. A district court of appeal is not concerned whether the release standard applicable to insanity acquitees is too strict or too lenient; that is the proper concern of the Supreme Court‘s decisions and rules or the legislature‘s statutes, or of some convenient marriage of decisions, rules and statutes. Nor are we to be concerned, absent a manifestly erroneous decision, with whether an acquitee is or not likely to injure others if released; that is the very demanding concern of the committing judge, whose breadth of jurisdiction and judgment on such issues cannot be found either in the psychiatric suite or the appellate court. Our proper concern is rather, as stated by Judge Bazelon, to
determine whether there has been a full exploration of all relevаnt facts, opposing views and possible alternatives, whether the results of the exploration relate rationally to the ultimate decision, and whether constitutional and statutory procedural safeguards have been faithfully observed. Our function is thus not to determine whether the decisions taken by those charged with handling disturbed or disturbing individuals are correct or wise — but whether they are rational in the manner which I have just described. [D. Bazelon, Institutionalization, Deinstitutionalization and the Adversary Process, 75 Col.L.Rev. 897, 910 (1975).]
D. Conditional release
In some cases, of which this may be a model, even a full exploration of all the relevant facts may leave a serious doubt in the mind of the committing judge whether the greater weight of the evidence shows the acquitee is unlikely to injure himself or others — or, by the former standard, that he is no longer manifestly dangerous. When medical benefits from hospitalization have been substantially realized; when the acquitee remains incurably or residually ill; when the acquitee has attained stable remission by care which is also available outside the hospital; and when the doubt concerning his nondangerousness is a product of his past violence and the incalculable risk that he will lose remission while at liberty, the all-or-nothing choice between liberty and absolute confinement is a lottery in which either the acquitee‘s liberty or the public‘s safety is often needlessly sacrificed. In those cases the committing judge shоuld consider releasing the acquitee on conditions reasonably calculated to monitor and assure his continued remission, reserving jurisdiction later to order, upon an appropriate hearing, absolute liberty37 or, again, absolute confinement.
If on remand Judge Willis should find by these standards that conditional release is appropriate for Hill, by way of example, conditions for his release may conceivably be that he remain in his father‘s household or under his father‘s direct supervision, that he take the prescribed daily dose of Mellaril in the presence of a designated person, that Hill present himself weekly or at other intervals for psychiatric evaluation at a designated
In Powell the committing circuit judge, whose action was challenged by a habeas corpus proceeding before the Supreme Court, had ordered acquitee James Powell recommitted following administrative recommendations for his discharge from Florida State Hospital. Powell had been found not dangerous by the superintendent, but the circuit court found “that the underlying psychosis rеmains even though the symptoms are in a state of remission,” which apparently was dependent on abstinence from narcotics. The circuit court stated:
The recommendations of the hospital and treating physicians are based upon the assumption that this court would have continuing jurisdiction over James Powell after his discharge from hospitalization and consequently could recognize and prevent future narcotic intoxication. This assumption is incorrect. [306 So.2d at 115]
The Supreme Court, sustaining the order for continuing commitment, did not address the circuit court‘s disavowal of power to order a conditional release hedged with measures to prevent or detect narcotic intoxication.
We find nothing in the rules or decisions of the Supreme Court preventing the conditional release of eligible insanity acquitees and the reservation of continuing jurisdiction, upon a proper showing, to release them absolutely or to recommit them. That power is inherent in the court‘s continuing jurisdiction over insanity acquitees. State v. Carter, supra; United States v. McNeil, 140 U.S.App.D.C. 228, 434 F.2d 502 (1970); Rawland v. Sheppard, 304 Minn. 496, 232 N.W.2d 8 (1975). That power is also implied in both Rule 3.460, which authorizes the committing court to “give [an insanity acquitee found manifestly dangerous] into the care of his friends, on their giving satisfactory security for the proper care and protection of such person“; and by Rule 3.210(e)(9), which authorizes the committing court to order that an insanity acquitee “receive outpatiеnt treatment at any ... appropriate facility or service on an outpatient basis... .”
As a consequence of the Supreme Court‘s Powell-Connors reclamation of jurisdiction over insanity acquitees, there is no longer any question of whether the court may address specific orders to agencies of the executive for outpatient treatment and supervision of an acquitee. When the Supreme Court adopted new rules of criminal procedure effective December 31, 1967, pursuant to its Article V power, a committee note to Rule 1.210(a), concerning the commitment and examination of defendants incompetent to be tried, explained the rule‘s omission of certain provisions in replaced Section 917.01, Florida Statutes (1967), which was otherwise the same. In re Florida Rules of Crim. Proc., 196 So.2d 124, 150 (Fla. 1967):
Committee Note: (a) Same as 917.01 except it was felt that court cannot by rule direct institution officials. Thus words, “* * * he shall report this fact to the court which conducted the hearing. If the officer so reports * * *” and concluding sentence, “[n]o defendant committed by a court to an institution, by reason of the examination referred to in this paragraph, shall be released therefrom, without the consent of the court committing him,” should be omitted from the rule but retained by statute.
Despite these reservations, which did not have the Court‘s approval, 196 So.2d at 124, present Rule 3.210, 343 So.2d at 1260, contains abundant directions to the executive concerning reports and other actions affecting those hospitalized before or after trial for insanity. E.g., rule 3.210(b)(1), (2), (3), (4), (e)(9).
The committing court‘s inherent power, buttressed by contemporary rules, is sufficient. But even if it were not, the Department of Health and Rehabilitative
[T]he court may order that the person receive outpatient treatment at any other appropriate facility or service on an outpatient basis... .
The duty of HRS to respond to orders for “outpatient treatment” cannot sensibly be confined to orders in lieu of initial hospitalization. That duty extends also to conditional release orders; and it is broad enough to include reporting on treatment, including observation.
If no conceivable conditional release plan is practicable or reasonably calculated to achieve its purpose, owing to the acquitee‘s peculiar disability or other circumstances over which the state has no control, continued confinement may of course be ordered. But if the cause for concern is only that the state cannot or will not provide effective facilities or services which may reasonably be required, that failure cannot be seized on as grounds to deny an eligible acquitee his unconditional release. To hold an insanity acquitee for аn indefinite term of preventive detention, on the sole ground that he cannot guarantee his continued remission and the state refuses to provide reasonable measures to monitor and assure it, would render all the law‘s antecedent acts — his acquittal for insanity, the order of commitment to secure a public necessity, the enforcement of standards for release and for proof, and the hearing on his release petition — a farcical charade.
We need not consider whether conditional release of eligible insanity acquitees is required by the due process clause,39 because Florida‘s rules and statutes, indeed its public policy as expressed in the common law, authorize absolute commitment only when it is “necessary” above other reasonably available alternatives. See In re Beverly, 342 So.2d 481, 486 (Fla. 1977) (civil committees):
If there were those capable of surviving safely in freedom either through their own efforts or with the aid of family or friends, hospitalization would not be necessary.
REVERSED, REMANDED.
BOYER, Acting C.J., and MILLS, J., concur.
Notes
When a person tried for an offense shall be acquitted by the jury for the cause of insanity, the jury, in giving their verdict of not guilty, shall state that it was given for such cause. If the discharge or going at large of such insane person shall be considered by the court manifestly dangerous to the peace and safety of the people, the court shall order him to be committed to jail or otherwise to be cared for as an insane person and such person shall be held in custody until released by order of the committing court, or may give him into the care of his friends, on their giving satisfactory security for the proper care and protection of such person; otherwise he shall be discharged.
(1) Criteria. — A person may be involuntarily hospitalized if he is mentally ill and because of his illness is:
(a) Likely to injure himself or others if allowed to remain at liberty, or
(b) In need of care or treatment and lacks sufficient capacity to make a responsible application on his own behalf.
The Baker Act standards were purportedly applicable to insanity acquitees by the implication of Section 394.467(3)(b), Florida Statutes (1973). 1975 legislation made the implication explicit, Section 394.467(5), Florida Statutes (1975). Chapter 77-312, Sections 1 and 2, Laws of Florida, strengthened the legislature‘s jurisdictional claim.
Dangerous behavior might be construed to include: (1) only the crime for which the insanity defense was successfully raised; (2) all crimes; (3) only felonious crimes (as opposed to misdemeanors); (4) only crimes for which a given maximum sentence or more is authorized; (5) only crimes categorized as violent; (6) only crimes categorized as harmful, physical or psychological, reparable or irreparable, to the victim; (7) any conduct, even if not labelled criminal, categorizеd as violent, harmful, or threatening; (8) any conduct which may provoke violent retaliatory acts; (9) any physical violence towards oneself; (10) any combination of these.
(a) In the case of any patient who has been committed to a mental hospital pursuant to Rule 3.460, Florida Rules of Criminal Procedure, Acquittal for Cause of Insanity, the committing court shall retain jurisdiction in the case.
If ... it is shown that the patient does not continue to meet the criteria for involuntary hospitalization, the hearing examiner shall sign an order allowing the release of the patient, which order shall not be effective until approved by the committing court.
If this act is passed by a two-thirds vote of the membership of each House of the Legislature, Rule 3.210, Florida Rules of Criminal Procedure, as amended, is repealed effective 90 days from the effective date of this act.
The Act was initiated in the House and passed by a vote of 113 yeas and no nays. Fla.H.R. Jour. 195 (1977). The Senate amended the House bill and passed it by a vote of 31 yeas and no nays. Fla.S.Jour. 754 (1977). The House concurred by a vote of 108 yeas and 1 nay. Fla.H.R.Jour. 1083 (1977).
There is no guarantee, nor will the doctors predict, that Taylor will not consume alcohol, if released. Even though the evidence indicates defendant has abstained during his confinement, he has done so within the confines of a controlled environment....
.....
No plan was proposed either by the hospital or defendant for the trial judge‘s consideration. The record does not show satisfactory evidence... .
One can only conclude that psychiatrists who make such judgments tended to over-predict dangerousness greatly, by a factor somewhere between ten and a hundred times the actual incidence of dangerous behavior. It is understandable why this should be so. If the psychiatrist under-predicts danger, and clears a patient who later commits a violent act, he will be subjected to severe criticism. If, on the other hand, he over-predicts danger, he will suffer no consequence from such faulty prediction... . [Id. at 447]
Without disparaging or denigrating the profession of psychiatry, we suggest that the witnesses summoned to the new hearing should include hospital employees such as nurses, orderlies, housekeepers and others who have had daily or frequent contact with petitioner... . It is suggested that a display of ungovernable temper when one has been inconvenienced by a housekeeper having just washed the floor may be more revealing and indicative of future conduct than the impression one gives when he sits across the desk or lies on the couch of a psychiatrist... . [T]he court should reach out for any available evidence which bears on petitioner‘s conduct while in the Hospital.
When [Hill] was interviewed ... he conducted himself in a very creditable manner. He answered questions in a direct and logical way, and showed good judgment in his appreciation of how to behave in conformity with the law and rules of ordinary social behavior. From these psychiatric observations, the Staff was able to conclude that he had recovered from his schizophrenic process... . In addition, our psychological test showed features of schizophrenic process, in remission. If he continues to take his Mellaril 50 mg. three times a day, his present state of control of the schizophrenic process will continue and could continue indefinitely.
Because of these findings, we can conclude that he is not dangerous at the present time for living in the community, provided he continues with his medication....