*1 Superin Petitioner, Schubert, ex Kovach, State rel. Respondent. tendent, Hospital, Central State July Argued 8, 1974. May 3, 1974. No. State Decided 341.) (Also reported in 219 N. 2dW. *3 argument For the there and oral were briefs Eiseriberg, Howard B. state defender. argued respondent J. For the cause David was Becker, attorney general, assistant whom Warren, attorney general. Robert W. brief *4 presented Does 971.17 J. issue is: sec. The Wilkie, (1) deny petitioner process due of to the Stats., equal protection the the in violation law and law Consti- the United fourteenth amendment States ? tution 971.17, petitioner challenges provisions of sec. upon a provide
Stats., for automatic commitment which finding or of mental disease of not adjudication at the time defect without an place provisions commitment for release which proving he is now upon petitioner the burden of discharged may safely sane and released without harm himself or others.
Equal procedures. to commitment proceedings Commitment are civil and benevolent thereby independent, extent, of the constitu- to a certain liberty safeguards applied deprivations in- tional proceedings. However, criminal the trend volved years rigorous protection recent toward a more has been rights. of individual
In in Baxstrom v. Herold3 the United States Supreme prisoner completing his Court held affording him sentence could not be committed without protections procedural provided citizens all other - involuntarily civilly The court found that committed. distinguishing com- there “is no conceivable basis for nearing penal mitment of a who the end of a that, term from all other there- civil commitments” and fore, statutory scrutiny scheme under in that case equal protection denied to the law. year, Specht supreme The next Patterson,4 prisoner court held that a committed under Colorado 3 (1966), 107, 112, Sup. Ct. Ed. 2d 620. L. U.S. Sup. (1967), 386 U. S. Ct. 18 L. Ed. *5 process Sex Act entitled Offenders was due clause hearing- counsel, to a present where would he with opportunity have an with heard, to be be confronted against right have of him, witnesses cross-examina behalf, tion and to offer evidence his own and to have findings adequate made for which would be review. hearing required already Wisconsin had such under its- deviate sex statutes.5
In Bolton v. Harris,6 Appeals Court of of Baxstrom applying District principles Columbia persons declared found not reason given hearing judicial procedures must be with substantially pro- to those in civil commitment similar ceedings. That court felt the Baxstrom Case indicated give commission of acts does not rise criminal presumption dangerousness standing alone, to a which, justifies pro- substantial in commitment differences mentally cedures and ill. confinement conditions Schopf In State ex rel. v. Schubert7 the Wisconsin challenge providing court was faced with a to its statute for automatic commitment of found insanity. court, a divided this court With deny equal found such scheme did not persons. law to The court confined Baxstrom Case distinguishable facts and found its provision procedures from of different civil versus criminal court commitments. The further held that expansive interpretation holding of Baxstrom in Bolton v. Harris found based reason erroneous ing. Indiana,8 In Jackson v. Supreme the United States (in 1972) challenge Court was faced another procedure. validity state commitment time This Huebner v. State 2d N. W. 2d 646. Wis. 6 (D. 1968), C. 2d Cir. Fed. 7 (1970), 2d 173 N. W. Wis. 2d 673. 8 (1972), Sup. S. Ct. U. L. Ed. *6 persons incom-
procedures found for the commitment supreme scrutiny. petent The under to stand trial were requires nature process that that the court found due reasonable relation some of commitment hear duration Therefore, the court of the commitment. charged offenses persons criminal mandated that incapacity to their solely on who are committed account time more than reasonable stand trial cannot be held necessary there is a substantial to determine whether attaining capacity probability fore- that in the their probability no such If seeable future. there proceedings for com- persons civil must be released carried been mitment This mandate has commenced. out this court.9 aspect Case has
However, another of the Jackson supreme found The court also received attention. similar equal petitioner that been denied had being subjected commitment law to more lenient hearing which The receive standards. did However, supreme represented by he was counsel. procedure that court found under which was substantially from afforded different that was or feebleminded. committed as insane court stated: “. . Baxstrom held that State cannot withhold protections procedural
from a few the requirements or the substantive to all commitment are available 10 others.” The court also said: principle “. Baxstrom . . The has extended also been following acquittal, commitment an Bolton v. Harris, 1, App. (1968); 130 U. S. D. C. 642 F. 2d State ex rel. Matalik Schubert v. (1973), 2d 67 Wis. Dodge County State ex Haskins 13; rel. v. (1974), Court
N. W. 2d
250, 214
2d
N.
62 Wis.
2d 575.
W.
Indiana, supra,
Jackson v.
Mullen,
Cameron v.
App.
D.
U. S.
C.
Under the (in Indiana statutes Jackson v. petitioner the state needed to the show that supreme to unable stand trial the court was unable say that, to the them, on record before Indiana could civilly petitioner have the committed as either insane or feebleminded under the applied those groups. standards to Supreme The subjecting United States Court found that petitioner the to a more lenient commitment standard generally applicable charged than those to all others not condemning offenses, thus him in effect to permanent showing institutionalization without the necessary for commitment afforded the civil statutes petitioner equal protection of Indiana denied the laws under fourteenth amendment. Humphrey Cady,12 involving litigants, In Wisconsin Supreme discussed, although United States Court involving actually decide, did not constitutional issues differing procedures persons civilly com- afforded mitted and those committed as “sex deviates” under the The statutes Wisconsin. in that case as- original provisions that serted and renewal pages 724, Id. 12 (1972), Sup. 405 U. S. Ct. L. Ed. Crimes Act were unconstitutional because Sex Wisconsin equivalent essentially to Wis- such commitments were jury provides Mental Health Act for consin’s which jury trial commitment without determination and his equal protection. deprived him thus that Supreme Wisconsin The Court found United States jury to years on a relied for almost a hundred has compulsory civilly whether to commit decide psychiatric treatment: such confinement “. . . Wisconsin conditions judgment defendant solely the medical legal treatable, mentally on the ill and but also social doing to himself
judgment potential harm, that his enough great justify massive others, or curtailment of liberty.” compulsory under supreme treatment court felt that require appeared kind Act same Crimes Sex question of whether determination and raised depriving persons being any justification existed for so Act de- committed under the Sex Crimes under termination afforded to Act. Mental Health The court indicated Wisconsin merely under the Act were not if commitment Sex Crimes sentencing probably exist an there would alternative to procedure. arguable justification for such no difference *8 Humphrey Supreme Case Prior to the the Wisconsin challenges rejected to the Sex Court had constitutional rejected a Act. In Buchanan v. State court Crimes this required equal protection under claim that trial Act, provided the Mental Health under Sex Crimes as Act. court found: This germane to the clas “There are distinctions several important sification, above—the most is that as seen dangerous
sexual deviate is confined because Id. at 609. 14 (1969), 460, 164 N. 263. Wis. W. 2d public, mentally and ill, person infirm or deficient primarily is confined for his treatment.” own benefit and ,1 However, in State ex rel. Farrell v. Stovall16 the Su- preme Court of the United States remanded two matters involving challenges constitutional to the Sex Crimes Act light the Wisconsin court for reconsideration in supreme Humphrey Cady court decisions in v. Jack- and son v. Indiana. On remand court determined fact no justifying rational basis existed the difference rights in the afforded to committed under the Sex Crimes Act to those and committed under the Mental Health Act. This court found: recognized “. . While the Buchanan decision the Acts distinguishable emphasis were primary of their terms confining —the chiefly sex deviate due to potential danger confining to the community, mentally chiefly ill own benefit his treatment, pervading theme of both is un- Acts deniably treatment of the individual and community. meaningful “. . . The difference between two apart Acts, slightly emphasis from the different noted in Buchanan, inapplicability is the sex crimes statute’s except where mental one’s illness or ‘aberration’ al- has ready led him the commission of a sex crime and con- viction therefor.” finding scope
This court
of the statutes
virtually
any
identical had to decide whether
rational
existed
procedure required
basis
distinctions
for commitments under either. The court found that:
justification,
“. .
pointed
. Such
out
the United
Supreme
States
phrey
Court in Baxstrom v.
Hum-
Herold and
Cady, requires
more
prior
than an individual’s
criminal record:
1 5
Id. at
61 (1973),
2dWis.
prisoner’s relevant be a criminal record determining condition, evaluating mental his condition; appropriate for his type and treatment of care jury however, justify depriving him of a not, it could question whether was on the basic determination subject appropriate kind mentally an some ill and ” 18 compulsory treatment.’ Crimes under the Sex that commitments This court found sentencing merely alternatives but inde- Act were not they pendent arose and of the convictions from which only meaningful between the therefore difference slightly greater emphasis a on two acts safety emphasis, Act. how- under the Sex Crimes This justify the differences ever, to was not sufficient procedure under the two acts. subsequent our decision in
Because cases Schopf Schubert, rel. find that State ex we now guilty commitment of found automatic persons of denial reason of is equal of the laws.
Following finding of not reason mental be another defect, mental there should now disease or jury question to the on the defendant whether submitted suffering presently from mental is in illness institutionalized treatment. These are de- need of made be in connection with must terminations ch. To commitment under Stats. answer such provided proof question, the would have based examination defendant his then question “Yes,” If the condition. answer this further then the court shall commit the defendant in accordance (1). with sec. 971.17 Id. 51.75, (f), II Sec. Art. Stats. *10 process proceedings
Due in commitment. We procedure also conclude 971.17, that the under sec. Stats., for the automatic upon commitment of a defendant finding a of not reason of mental disease or mental defect process a constitutes denial of due in its hearing finding denial of a present insanity at the time of the commitment.
Jackson Indiana justify not an does com- automatic hearing. mitment a merely without case That holds that the duration of commitment must bear a reasonable relation of the commitment. It does not proposition stand for the that commitment can be with- hearing. out petitioner in Jackson an did have adjudication incompetency being before committed. satisfy finding
To process, present due mental hearing be made illness should after full aon de- present fendant’s condition.
Challenge to procedures. re-examination provisions (2), Stats., spell- Whereas sec. 971.17 ing procedure out the for a re-examination of defend- condition, provide general ant’s mental procedure following desig- sec. 51.11, neither sec. 971.17 nor ch. proof nates who has the burden of at a re-examination hearing Normally, under ch. 51. carries persuasion any judicial burden proceeding, so that persuade burden would on the defendant reviewing court he could be released.20 equal protection
There is no process denial of or of due placing showing the burden of that a defendant can be See 56 (1961), U. Nw. L. Rev. note 144 and cases 135; Regents (1965), 159, 164, note Loeb v. Board Wis. N. W. 2d 227. defendant, since the safety burden on released with the same. 51.11 is and under sec. under sec. 971.17 place this burden shock the conscience does not It must provides that the court defendant since ch. patient who appoint psychiatrists to examine two patient thus the applies for re-examination and completely without assistance. ruling.
Prospective *11 to committed present has been Because unsuccessfully sought Hospital and has the Central State op- re-examinations, the same release in several every been available portunity re-examination has for automatically under sec. criminal defendant finding following he not Stats., a (1), 971.17 the time of or guilty by disease defect mental ruling prospect completely this alleged offense, we In other petitioner's case. apply to the do not ruling governs prosecutions yet words, not instituted this completed. ruling in- herein, the recommended our Because of verdict of “not on the effect of a struction or de- (disease (disease) (defect) mental reason of ” 21 fect) reflect fact modified must be finding to whether be asked as will such mentally he is presently ill and whether defendant is custody subject proper and treatment.22 provisions (1), By Court. —The 971.17 sec. providing Stats., commitment without automatic hearing present need for determine mental state and commitment, equal process and due violate I, Criminal, 655-CPC. State v. Part See Wis J Shoffner I— Lyles 458; (1966), 143 N. 2d 2d W. Wis. 725; (D. 1957), 2d McDonald v. Cir. 254 Fed. States C. United (D. 1962), C. 312 Fed. States Cir. United (5) (e) and 971.17 Stats. 51.02 Secs. Constitution; clause of the States determination United present prosecu- mental shall all illness be made in pending tions instituted; either or not other relief denied petitioner. to this W. state, In this Hansen,
Eobert (dissenting). J. by statute, when defendant in a criminal case found is guilty by not reason of offense, at the time of an he facility is committed to a state treatment until “. . . may safely discharged danger or released without himself or others. ...” The claim here is that equal protection violates both of the and due law process Analysis challenge requires law. initial analysis purpose insanity acquittal of such com- mitment.
Purpose public purpose commitment. is What served such commitment of a defendant found insanity? reason of served two (1) fold: public; (2) Protection treatment and rehabilitation of the defendant.2 More is involved treating than therapy sick until well.3 Not *12 1 gee_ (2), 9Y1JL7 Stats. 2 Treglown Department 317, 325, v. (1968), H&SS 38 Wis. 2d 326, 363, holding 156 N. W. 2d . . the “. of detention providing under a person acquitted for a commitment of by insanity of punitive crime of reason is ‘. . . not but rather purpose: serves (1) a protect public two-fold the and the subject, place (2) procedure and and, afford a and to treat if ” possible, subject.’ (Quoting to rehabilitate the Collins v. Cameron (D. 1967), 945, 947.) C. Cir. Fed. 2d page 325, stating predecessor this court of statute with likelihood safety of recurrence rather than the of himself and others the test for release: “It is clear that the intent and result statutory of this enactment is not to authorize but to direct beyond continued confinement under recovery this section the full patient likely until is established that ‘he is not to have insanity a irresponsibility.’ recurrence goes of or mental This beyond treating the sick until well. It directs confinement until society insanity is reassured that irrespon- reccurence or mental proper “. . . custo involved, also the defendant but protected handling community from the is
dial so dangerous persons.” may be to other individuals who places safety that public protecting It is factor this public upon emphasis until the “. . . confinement 5 Realizing twofold justifies safety release . ...” objective made clear commitment, court this has safety primary importance . the “. of a de in automatic confinement factor involved grounds acquitted . ...” fendant on the criminal on a Status When a defendant of defendant. insanity, charge been found not has happened? that: “When court has said what Our has engages mentally made in conduct ill offensive society question by punishable with law, faced engaging the offensive conduct at the time of in whether by the mental the accused was dominated affected degree society cannot, illness so substantial responsible good conscience, the conduct him hold to that i.e., punish crime, him. ...” The answer legislature held, “. question, is that . . we have [t]he general by making and rules, judiciary, combination, specific must, verdict in a case its measuring answer, provide . .” That the answer. degree relationship illness the mental between legal conduct, ais offensive of the defendant his insanity or mental sibility not but for will result in acts which irresponsibility would be crimes.” Schopf v. rel. 45 Wis. State ex Schubert objective stating: court “There is twofold W. 2d 173 N. adjudicated dealing prisoners who been have insanity: Therapy (1) from which for the mental disease reason of crime, proper (2) suffering they time of the were community protected indi handling from so that custodial may dangerous persons.” who other viduals supra, Treglown Department, H&SS *13 6 Id. at 7 567, 585, (1962), 2d N. 2d 505. State v. Esser 16 Wis. 115 W. Id. a concept.9 medical us, In the case before legal insanity asserted such defense of and was guilty by found not insanity. reason of such He thus a became excep- member of what has been termed “an tional people people class of who have acts — by law, forbidden have of who verdicts ‘not obtained ” 10 insanity.’ category reason of It is a or class that is persons distinct different from committable in proceedings civil commitment treatment of only.11 It category or class also and different distinct from those incompetent who are found trial stand judicial nearing proceedings,12 those, or end of a page 686, stating: universally, Id. how this court “Almost ever, provide the courts a standard is instructed which degree relationship to measure whether the of the mental between illness accused sufficient and his offensive conduct is responsibility. him relieve from as the refer to this standard We insanity. definition of of the defense of It is not a definition insanity, defense, mental illness medical a definition of but legal concept.” and not a medical 1 0 (D. 669, 1958), 667, Overholser Leach v. C. Cir. 257 Fed. 2d (1959), 1013, Sup. 1152, certiorari denied L. Ed. U. S. Ct. 1038, stating insanity acquittal 2d “This commitment statute: applies exceptional people people to an class of have who — by law, committed acts forbidden have who obtained verdicts guilty by insanity,’ ‘not reason of who have been committed pursuant category People a mental institution to the in that Code. by Congress are treated in a different from fashion who conditions, have somewhat similar mental but who have not com mitted offenses or obtained verdicts of not Ragsdale (Quoted (D. . . .” v. Overholser C. Cir. 1960), 943, 946.) Fed. 2d stating: page 669, [insanity the court “The test acquittal particular is not commitment] statute whether indi ordinary vidual, engaged pursuits life, in the is committable governing a mental institution under the law commitments. civil 1958, Williams, App. Cf. Overholser v. S. D. C. U. apply F. 2d 629. Those laws do not here. . . .” Sup. See: Jackson Indiana 406 U. S. Ct. 435, involving 32 L. Ed. indeterminate commitment incompetent trial, feebleminded deaf mute to stand the court stating: hold, consequently, person charged by “We a State *14 sought solely
prison term, commitment for whom civil is recovery.13 purpose until of treatment for safety . release. It Provisions is for '14along “. . . with the requirements .” for release . his . . .” his commitment factors involved in nontreatment distinguish purpose of sharply an that The acquittal a commitment. from civil commitment provides governing proceedings commitment civil hospital for a . the is committed that “. . .. .” that “. [re until recovered . . and treatment re covery for the sole test from mental illness is circumstances, a fact, In under certain lease. ...” he may person civilly before committed released be the dif- It fully illness.18 recovered from his mental solely of his is committed account a criminal offense who incapacity proceed more than the reason- cannot held to trial necessary a period there is sub- whether able of time to determine capacity probability foresee- in the he will attain that stantial that (Emphasis supplied.) able future. . . .” Sup. (1966), 107, 86 Ct. Baxstrom v. Herold U. S. See: prisoner nearing end of his L. where Ed. radically civilly procedure prison differ term was civilly also: ex rel. commit See State from used others. ent stating page supra, Schopf at Schubert, court footnote v. prisoner this was that 650: “. . . concluding denial complete “The his sentence” about providing different equal two arose as result no basis it.” and with reasonable civil commitment methods of (Emphasis supplied.) page Treglown Department, supra, H&SS 327. 1 5 Id. at Id. at 327. summarizing applicable page 324, for dis Id. statutes commitments, stating-: pro charge (5), “. . . civil See. 51.11 may discharge patient of a if order court vides longer no ‘in need that he is of care and treatment.’ of determines superintendent any county state Under sec. 51.12 approval Depart center, hospital health with the or mental necessary Services outside of Health and Social Milwaukee ment fering statutory provisions concerning release or dis- charge help establish nature involved, commitments dis- reasonable basis for tinguishing Treglown, between them. As we stated emphasis upon it is “. . . release civil com- [t]his [in *15 proceedings] mitment recovery as soon or the welfare as patient permits and establishes the nature [that] purpose of the confinement: treatment the for illness 19 petitioner involved.” Not here, for, so with the as in Treglown, “. . . He was found not of Hospital and was committed to the Central State protection public the the and for his rehabilitation 20 treatment, and possible.” if (Emphasis supplied.) protection Equal petitioner’s law. The is contention only equivalent pro- some of civil commitment ceedings constitutionally could he be committed to a state following facility insanity acquittal. treatment It his equal protection disapproves is without merit. The clause Equal arbitrary irrational classifications.21 protection require law . does not that all require be identically, dealt with but does a distinction relevance made have some to the for which the .” dif- classification is made. . . The procedures ference in in- for civil commitment and the acquittal sanity by the commitment are warranted county, may discharge any patient judgment in re- who his is discharge covered or not who is recovered but whose will injurious patient. detrimental or the welfare Under (1) superintendents (2), 51.13 state mental sec. certain grant may patients if, their institutions conditional releases to in opinion, proper so,’ upon ‘it is do the written recommendation visiting physician. the 19 . .” Id. at 324. Maryland (1961), Sup. See: McGowan v. U. S. 1101, L. Ct. Ed. 2d 393. Herold, supra, (Quoted Baxstrom v. 148, 171, in State ex rel. Farrell v. Stovall 2dWis. 809.) N. W. the com- purpose primary in the differences
obvious in Exactly concluded as this court mitments involved. precise point involved, writer Schopf Case on made . . classification would conclude that: “. civil legislature between situation in instant neither irra- criminal commitment commitment perfectly reason- and, fact, arbitrary, in tional nor Schopf, in appropriately said able. . . As was .”23 community general safety of the . . Concern for requires at least much. . . .” viewing apparently petitioner disagrees,
Counsel the Jackson Supreme Court decision the United States Case washing away the foundation our court’s Neither holding equal issue. Schopf holding any such Jackson warrant nor the facts Jackson, high in- In court dealt conclusion. competency there was trial. The stand to a mental mentally deaf defective mute,26 *16 to incapacity solely hospital “. . on account of this . proceed to trial . . . .” He was there confined testimony that was years, medical three and one-half and proceed to Under these able to he never would be trial.28 Schopf supra, Schubert, ex at State rel. 651. Id. at Indiana, supra, Jackson v. footnote 12. “Petitioner, page 717, stating: Jackson, Theon Id. at the court mentally pre a mute level a is a defective deaf with mental read, write, or communicate child. He cannot otherwise school language. page 719, except through sign . . Id. the limited .” stating: found court “. . . trial court that Jackson ‘lack[ed] [T]he comprehension defense,’ . to make his . . and ordered sufficient Department Mental Health him committed to the Indiana until Department certify as to ‘the such time that should the court that ” sane.’ defendant is Id. at pages 718, 719, stating: the court . . “. One doctor extremely unlikely petitioner that testified was that could ever questioned petitioner or write and to read whether even had learn ability any proficiency sign develop language. the . The . . circumstances,29 high filing that court held mere charges, criminal more, confining no did not warrant for “. . . period more than the reasonable necessary of time to determine whether there is a sub- probability stantial capacity that he will attain that [to proceed to in the . . foreseeable future. .” trial] showing commitment required statute there involved dangerousness, and the pend- court held that “. . . the ing charges criminal are insufficient to establish it, supporting no other evidence . was introduced. . .” distinguished Schopf Jackson is from the case before us of the commitments involved petitioners status of the involved, by the well as public safety absence the Jackson situation factor. opinion Jackson, holding
In the Baxstrom that cites prisoner “. . a state civilly committed of his end prison equal sentence . was denied . . when deprived trial that made State generally persons civilly to all other available com- Baxstrom, mitted. . .” In that . . court said “. distinguishing there no is conceivable basis the com- nearing mitment of penal who of a end term from all civil Then, other in Jaek- commitments.” mute, other doctor if not testified even Jackson a deaf were incompetent trial, peti- he would be stand and doubted whether intelligence necessary develop tioner had sufficient ever communication skills. ...” pages stating: 29 Id. at “Were the court the State’s premise temporary
factual that Jackson’s commitment one, might valid well be a different But the record does case. support nothing premise. . . . There is the record *17 any points possibility present to can even that Jackson’s condition any be remedied at future time.” 30 page at Id. 738. 31 page Id. at 728. 32 pages 723, Id. at 724. 33 page 724, citing quoting Herold, at Id. Baxstrom v. supra, footnote 13. 632 that: . The Baxstrom
son, commented “. . court principle extended commitment follow- also has been to 34 ing acquittal . observa- insanity This brief an holding is of the Baxstrom tion of court lower extensions against high mandate a court be ballooned into acquittal insanity in commitment situations. automatic any in not delineate informational comment does Such extent of the extension made manner the nature or example their courts it mandate lower nor does followed. proscription into
Reluctance to escalate mention is strengthened by one, In reference to the three cases cited. Ragsdale Case,35 case, Overh Bolton v. earlier an justifying insanity olser36 commitment immediate acquittal protect overr public, considered cases cited, Lally Case,38 the In uled.37 a second case Ragsdale cited, followed v. Overholser decision same reasoning case, termed In third “sound.” its acquitted by Case,40 proposition that the Cameron one greater presumably “. constitutes a reason of . . danger civilly public committed . . .” than those congressional adoption to be the basis is stated page 724, citing (D. 1968), Bolton v. Harris C. Cir. Id. at (D. 642; 1967), v. Fed. Cameron Mullen C. Cir. 2d Fed. Lally 27, People 193; N. 2d v. Y. 2d 224 N. E. 87. Harris, supra, Bolton v. footnote 34. 36 Ragsdale Overholser, supra, footnote 10. v. Harris, supra, v. footnote at Bolton 649. Lally, supra, People footnote 34. Id. supra, Mullen, Cameron v. footnote 34. Page 201, stating: also: See Rep. g., Rep. Cong., “See, R. e. No. H. No. 84th Sen. p. opinion (1966), 13: ‘The Committee is of 1st Sess. that, every person to know is entitled case where a defect, a crime a result of mental disease has given period hospitalization shall be and treatment against guard imminent recurrence of some criminal act (Emphasis original.)” person.’
633 justi are involved, eases in which cited such 42 expression Rags fication “. .. . has found . v. Ragsdale dale Overholser v. Overholser included. holds those who have obtained verdicts of not reason insanity exceptional of people” be “an of treated class differently from of who have not committed fenses guilty obtained verdicts insanity.43 process Due law. The “. .. nontreatment factors 44
involved in
public
his commitment
. .
and the “.
..
45
safety requirements for
release . .
are relevant
his
petitioner’s
following
claim that commitment
acquittal
They
process.
denied due
are a
reminder
was found not
of the commission
of a
solely
criminal offense
on his
asserted defense
being insane at the time of
commission
the offense.46
public safety
It is such nontreatment
factors and
requirements for
need
release
establish
basis
Schopf
proper
for what
“.
was termed
custodial
handling
protected
community
so
from in
47
may
dangerous
persons.”
dividuals who
to other
Lally Case,48
emphasis
discussed,
In the
heretofore
page
Page 201,
26, continuing:
42 Id. at
200. See also:
footnote
Leach,
App.
291,
289,
“See Overholser v.
103
S.
257
U.
D. C.
667,
1013,
denied,
P.
cert.
Ct.
U. S.
S.
1152,
(1959); Ragsdale
Overholser,
Ed. 2d 1038
L.
v.
App.
308,
(1960);
U. S.
D.
C.
P. 2d 943
Overholser v.
O’Beirne,
App.
267,
(1961).
112 U. S.
D. C.
In the providing for automatic commitment of defend statute insanity,50 the court found not ants upon per emphasis opportunity the placed provided the validity of challenge to the his “. . . sons committed that, . .” under its continued detention . . It noted acquittal person insanity law, ours, as the com under make, he may “. . the which mitted . to court committed, application or dis for his release an charge that, statute, . as . . .” It noted under their any person the under the committed can ours, case hearing present for a to condi time “. . . ask as his petitioner . It it did tion. .” noted that the before just petitioner in the hearing, not ask for not, “. . stood on his case before us has but instead original contention that continued detention was his and Id. at 33. page 30, noting Id. at involved court pleads provided that: case the defense . . when a criminal insanity jury acquits ground on that the court must custody to of the State order defendant be committed to the Hygiene appropriate to Commissioner of Mental an placed Hygiene Department ap- in the Mental or Correction institution department. proved the head of sueh ...” Id. at 33. pages 30, Id. at illegal alleged unconstitutionality because appellate Lally, statute.” In court did read. state statutory provisions into the applications for such hearings provision jury issues, “. . a. for a these trial of appellant if requests. . . .” in the so The already right ap case us trial before has such plication (In fact, already has re-examination.56 he rejecting had three hearings.) such re-examination In due-process give challenge law, we to Wisconsin weight right petition for re-examination of status and mental condition that afforded following acquittals. insanity committed following acquittal an may petition verdict for re-examination of his court may mental condition determination whether *20 safely danger be released or without to himself others any at time after such in commitment. As was said Schopf, prisoner adjudicated guilty by the . . not insanity proceedings reason of can to re initiate be perhaps examined the he and released arrives moment 57 at Hospital. person the . . Central The found State insanity consequently reason of com and Hospital, mitted is “. . . sent to but with Central State right petition the to for an minute he examination the 58 puts Schopf .” he it, arrives. . . As .. When 59 petitions gets examination, aspect he This it.” insanity acquittal pro- of the Wisconsin commitment law page Id. at 34. page Id. at 35. incorporating provisions Stats., See: Sec. 971.17 51.11(5), Stats., providing part: sec. If in “. . . trial is demanded, procedure shall, may be, near as as be the same 51.03, as in s. and the order or court’s determination shall he jury’s in accordance verdict.” Schopf Schubert, page supra, State ex rel. footnote 654. page Id. at 654. Id. at here, adequate process others to the
vides Sehopf exactly category. So, concluded in his same precisely would hold situation, the same writer “. provided . . procedures legislatively in this state requirements adequate satisfy the constitutionally process . of due . . .” dissenting opinion Finding dangerousness. has This primary “. termed . . stressed court has [t]he what this safety importance involved public factor acquitted on the of a defendant automatic confinement grounds importance of this . . .” . emphasized also in the ref- factor is statute, in Jackson v. Indiana to federal USC erence 4247, applicable convicted whose on its face criminals judicial expire inter- federal are about to sentences pretation incompetent This trial. to defendants stand (1) permits prisoner . “. . commitment if the mentally incompetent’ (2) probably ‘will ‘insane endanger officers, property, or safety of the .’”62 The other . interests United States. . Jackson that a under decision notes longer “. no . . must released when he section ” 63 ‘dangerous.’ that, Greenwood,64 It notes had upheld pretrial even a commitment under this statute conditions, had met three but a defendant who had all had in “. . District Court done so because . specifically would be . found Greenwood fact Treglown Department, supra, v. H&SS *21 326. 62 supra, pages 731, Indiana, Jackson footnote 732. at noting page “One committed Id. at the court that: any section, however, to is entitled release when under longer obtains, conditions ‘whichever event shall the three no ” first occur.’ 366, 373, (1956), v. United States 350 U. Greenwood S. 410, 100 Sup. Ct. Ed. 412. L. dangerous and, accordingly, if not . . .” longer “. . . to no Greenwood release when entitled was dangerous discussing high .. . .” the While court is incompetent here a found commitment of a defendant to trial, clearly states that the Greewwood stand commit- only upon finding ment “. . . sustained the was dangerousness. . .”. In commitment, the insanity acquittal case of an dangerousness writer would hold element others by supplied acquittal solely be fact an on insanity, by basis of with entitled that fact right alone to commitment of immediate re-ex amination assured the committed and confinement and treatment the person mandated until commit may safely discharged ted “. . . or with released danger out However, himself or others. against strengthened writer the statute chal sees future lenge by majority’s requiring jury the same which finds defendant not reason of at the time of the or not offense also answers whether the defendant, verdict, at the time or of the insane dangerous jury to himself or If the found the others. defendant insane at the time of omission offense were danger to find such defendant no him sane and or verdict, self others the time of dual basis to be commitment to served a treatment facility specifically negatived. would be If insanity-acquitted found that such defendant either was dangerous presently others, insane to himself or except buttressing much would be added against possible challenge constitutional based some expansion said in the Green- and extension what supra, Indiana, Jackson v. 732. Id. at Sec. 971.17 Stats. *22 goal judicial certainty However,
wood Case. particularly process, the criminal field. So and inso accepts proper prudent procedural re- writer acquittal quirement insanity the ma- under the jority requirement jury, if it the defendant that the finds required insanity, also be not reason defendant, at or it finds answer whether not presents a verdict, is either insane or the time danger or others. himself enough long journey con- the writer This ends cluding: insanity (1) law commitment The Wisconsin process deny equal protection or due does not either (2) requirement that, law; where added insanity, also finds a defendant danger- defendant insane determine whether such at the of the verdict is ous to himself or time others requirement. procedural prudent proper and Mr. to state that Justice am authorized Leo B. I T. Hansen concur Mr. Justice Hanley Connor upholds portion opinion that the constitu- the tionality acquittal statute, commitment 971.17 Stats. sec.