State v. FosterState v. Foster
************************************************
The “officially released” date that appears near the beginning of an opinion is the date the opinion will be published in the Connecticut Law Journal or the date it is released as a slip opinion. The operative date for the beginning of all time periods for the filing of postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative.
The syllabus and procedural history accompanying an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.
************************************************
Syllabus
The acquittee, who had been found not guilty by reason of mental disease or defect of first degree burglary, risk of injury to a child, third degree assault, and possession of a weapon on school grounds, was committed to the jurisdiction of the Psychiatric Security Review Board in 2003, for a period not to exceed ten years. The acquittee‘s commitment was extended multiple times by agreement of the parties, but, in 2018, he was granted conditional release and began living in the community, subject to his compliance with certain conditions relating to his ongoing mental health treatment. Thereafter, in 2019, the state filed a petition for an order to extend the acquittee‘s commitment pursuant to the statute (
The Appellate Court correctly concluded that the recommitment scheme contemplated by
The acquittee‘s equal protection claim was premised on the argument that, even though he is similarly situated to convicted inmates who, while already incarcerated, develop psychiatric conditions and are subsequently committed to mental health facilities pursuant to the statutes (
The acquittee‘s equal protection claim failed because individuals, such as the acquittee, who are found not guilty by reason of mental disease or defect (insanity acquittees) and who have reached the end of their initial, maximum terms of commitment, are not similarly situated to civilly committed inmates for purposes of commitment.
Specifically, an insanity acquittee‘s commitment is the product of a judicial determination that the criminal acts that resulted in his commitment were the result of his mental illness, whereas a civilly committed inmate has not acknowledged that he suffers from a mental illness that caused him to engage in criminal conduct, and there is no connection between the civilly committed inmate‘s criminal behavior and his civil commitment, insofar as the inmate‘s mental illness and the associated danger to himself or others may develop years after the commencement of the inmate‘s sentence for his prior criminal behavior.
The Appellate Court properly upheld the trial court‘s finding under
The offenses that led to the acquittee‘s prosecution, which involved the physical assault of two schoolchildren while the acquittee was experiencing auditory hallucinations, were violent in nature and indicated that his psychotic disorder could seriously endanger the safety of other people, it was appropriate for the trial court to consider the acquittee‘s offenses in making its determination of dangerousness, even though they occurred more than eighteen years before the state filed its petition for continued commitment in 2019, and, during his nearly two decades of commitment, the acquittee experienced numerous difficulties and forfeited various privileges as a result of engaging in inappropriate and impulsive behavior.
In light of the length of the acquittee‘s commitment, this court placed particular emphasis on the acquittee‘s mental health status at or around the time that the state filed the 2019 petition, and, although the acquittee had demonstrated some progress toward recovery and had been granted conditional release during that time period, various medical professionals had expressed concern with the acquittee‘s discharge, given the short period of time during which he had demonstrated compliance while under supervised release, and the trial court properly credited the testimony of those professionals.
Moreover, the Psychiatric Security Review Board had noted that the acquittee continued to require substantial supervision while on conditional release, and it was appropriate for the trial court, in determining whether the acquittee posed a risk of danger, to consider the degree to which the acquittee‘s progress was the product of the services, structure, and support that he was receiving and what could potentially happen when the acquittee is no longer required to take medication, to attend counseling, or to have other restrictions in place that may remove potential stressors or triggers.
(One justice concurring separately)
Argued December 4, 2024—officially released August 19, 2025
Petition for an order extending the acquittee‘s commitment to the Psychiatric Security Review Board, brought to the Superior Court in the judicial district of Stamford-Norwalk, geographical area number one, where the court, Hon. Richard F. Comerford, Jr., judge trial referee, denied the acquittee‘s motions to dismiss and to strike; thereafter, the case was tried to the court, Hon. Richard F. Comerford, Jr., judge trial referee, who, exercising the powers of the Superior Court, rendered judgment granting the petition, from which the acquittee appealed to the Appellate Court, Cradle and Suarez, Js., with Seeley, J., concurring, which affirmed the trial court‘s judgment, and the acquittee, on the granting of certification, appealed to this court. Affirmed.
Monte P. Radler, with whom was Kevin Semataska, assistant public defender, for the appellant (acquittee).
Jonathan M. Sousa, assistant state‘s attorney, with whom, on the brief, were Paul J. Ferencek, state‘s attorney, and Elizabeth K. Moran, assistant state‘s attorney, for the appellee (state).
Deborah A. Dorfman filed a brief for Disability Rights Connecticut as amicus curiae.
Opinion
MULLINS, C. J. The principal issue in this certified appeal is whether, for purposes of an equal protection challenge, an insanity acquittee1 who is subject to a petition under
The acquittee, Franklin Foster, appeals, upon our grant of his petition for certification,3 from the judgment of the
The record reveals the following relevant facts and procedural history, many of which are aptly set forth in greater detail in the opinion of the Appellate Court. See id., 478–82. In 2001, when he was twenty-four years old, the acquittee entered a Greenwich middle school without permission. Id., 478–79. The acquittee possessed two knives; unprovoked, he punched, slapped and kicked a male student and lifted a female student over his head. Id. When apprehended, the acquittee told the police: “I‘m here to fight the first person I see. Both of us were in the wrong place at the wrong time.” (Internal quotation marks omitted.) Id., 479. “[D]uring the incident at issue, the acquittee was responding to command auditory hallucinations that told him to assault a minor.” (Internal quotation marks omitted.) Id., 479 n.1. The acquittee was found not guilty by reason of a mental disease or
Following his insanity acquittal, the acquittee was initially committed in 2003 “to the jurisdiction of the board for a period of time not to exceed ten years, and [he] was subsequently admitted to a psychiatric hospital. By agreement of the parties, the acquittee‘s commitment was continued by the [trial] court for one year in 2013, two years in 2014, two years in 2016, and one year in 2018.” Id., 479.
With respect to the nature of his commitment, the acquittee was initially confined under maximum security conditions for four years at what was then the Whiting Forensic Division of the Connecticut Valley Hospital (hospital) in Middletown, from June, 2003, until August, 2007. In August, 2007, the board approved the transfer of the acquittee to the hospital‘s less restrictive Dutcher Enhanced Security Service (Dutcher). The acquittee began to attend day treatment services in Bridgeport in March, 2012, but resided at the hospital until August, 2013. He then moved to a community outpatient setting until December, 2013, when he was required to return to the hospital because of “inappropriate behavior.”
In May, 2014, the board terminated the acquittee‘s overnight leave but continued to permit him to attend day treatment in the community while residing at Dutcher. That privilege was suspended briefly after the acquittee assaulted another patient in November, 2014, injuring himself but not the other patient.
In 2015, the acquittee underwent neuropsychological testing, which revealed “poor frustration tolerance” and impulsivity. Kevin Trueblood, a forensic psychiatrist, described him as “angry and rigid” in response to clinical staff, particularly female staff who exercised authority over him. Trueblood reported that the acquittee had exhibited some insight into his index offenses and mental illnesses but was “not likely to make much more improvement” in that respect. In a 2016 report, the board indicated that it agreed with Trueblood‘s concern that, if discharged, the acquittee would become noncompliant with treatment and dangerous.
In 2016 and 2017, the acquittee threatened female hospital staff on multiple occasions, which resulted in the board‘s decreasing his leave privileges. On one of those occasions, the acquittee blocked a female staff member from exiting a small storage room in a way that left her feeling “barricaded” in that space. On a second occasion, after a staff member tried to “redirect” the acquittee following an incident with another patient in the dining room, he called that staff member “a derogatory curse word.” He then disobeyed staff direction to remain where he was and told a female member that he should “‘slap her for being a snitch.‘” On a third occasion, the acquittee told the same female staff member from the storage room incident that he was “out to get [her].”
After nearly one year of clinical stability and compliance with taking his medication, in the summer of 2018, “the acquittee was granted conditional release, at which time he was discharged from the hospital and began living in the community. His release in the community was conditioned [on] his compliance with several requirements pertaining to his ongoing mental health treatment.” State v. Foster, supra, 217 Conn. App. 479. He has continued living in Bridgeport following his transition to conditional release.
The state filed the petition for continued commitment at issue in this certified appeal in July, 2019. Id. In August, 2019, the board filed a report pursuant to
Given that the acquittee had been on conditional release status for only approximately one year when the state filed its petition for continued commitment, the board emphasized that his “experience living in the community remain[ed] limited and [that] he [was] stable only because of substantial supervision and support, including daily monitored medication; a structured residential program with [forty] hours of mandated programming a week; limited travel in his own custody, in [six] hour increments; and weekly meetings with an individual therapist and conditional release supervisor. Without these mandated safeguards, which his treaters continue[d] to believe [were] required to address his risk, he [was] likely to become noncompliant with treatment and medication, increasing his risk to himself and the community. Given that he would no longer be subject to the safeguards if discharged from the board and that he was only released from hospital confinement during the past year and had not before that resided independently in the community since 2001, the board [found] that he continue[d] to require substantial supervision and that he [could not] reside safely in the community without the board‘s continued oversight and support.”
The acquittee moved to dismiss the state‘s petition for continued commitment on the ground that the recommitment procedure under
The trial court further found that, although the acquittee‘s “record indicates progress, his current release into the community is stable because of substantial supervision and support. These mandated safeguards and supervision, including a required pharmaceutical regime, are necessary to avoid increasing his risk to himself and the community. [Although the acquittee] has expressed . . . to [his conditional release supervisor, Madeline Rodriguez, who is a licensed clinical social worker, an intent] to voluntarily comply with mandated safeguards, a sufficient period of time in conditional release status has not passed for the [trial] court to give great weight to any such self-represented intent. [On the basis of] the reliable and probative evidence, the significant nature of the underlying criminal behavior, and the history of [the acquittee], the court finds that he cannot reside in the community without [the board‘s] continued oversight and support.” The trial court later extended that two year commitment to December 1, 2025. See footnote 7 of this opinion.
In March, 2020, the acquittee appealed from the judgment of the trial court to the Appellate Court. State v. Foster, supra, 217 Conn. App. 481. He first claimed that the trial court “improperly found that the state had proven by clear and convincing evidence that he suffered from a mental illness resulting in his being a danger to himself or others.” Id., 482. The Appellate Court rejected this claim. See id. The Appellate Court concluded that the trial court‘s finding of dangerousness was not clearly erroneous because (1) “during his commitment to the board, the acquittee had made progress and . . . the current level of his release into the community is ‘stable’ only because of mandated safeguards imposed by the board“; id., 493; and (2) despite the acquittee‘s expressed intention “to voluntarily comply with mandated safeguards,” the record did not establish “a sufficient history of [the acquittee] being in a conditional release status to support a conclusion that he can live in the community without board oversight.” Id., 494.
The acquittee‘s second claim on appeal was that ”
I
We begin with the principal issue in this appeal, which is the acquittee‘s claim that the recommitment scheme under
We conclude that the acquittee‘s equal protection claim fails because, as an insanity acquittee, even one whose initial maximum term of commitment has expired, he is not similarly situated to a civilly committed inmate. Primarily, there is a fundamental distinction between the two classes because, in contrast to a civilly committed inmate‘s commitment, an insanity acquittee‘s commitment is the product of a judicially determined connection between the index offense and the insanity acquittee‘s mental illness.
A
Review of Governing Statutory Scheme
An overview of Connecticut‘s statutory scheme governing the recommitment of insanity
“[T]he most obvious reason why divergent outcomes of this sort are possible is that the legislature has imposed different mandates on the two commitment systems.” Id., 323. “[F]or acquittees, the legislature has directed the board, in making decisions regarding conditional release, and the Superior Court, in making decisions regarding discharge, to consider that [the] primary concern is the protection of society . . . .
This court‘s 1994 decision in State v. Metz, supra, 230 Conn. 400, clarified the burden of proof applicable in acquittees’ recommitment proceedings. In Metz, this court “conclude[d] that
B
General Equal Protection Principles
The following well established principles govern our review of the acquittee‘s federal equal protection claims, which present “a question of law over which our review is plenary. . . . [T]he concept of equal protection [under the federal constitution] has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged. . . . Conversely, the equal protection clause places no restrictions on the state‘s authority to treat dissimilar persons in a dissimilar manner. . . . Thus, [t]o implicate the equal protection [clause] . . . it is necessary that the state statute . . . in question, either on its face or in practice, treat persons standing in the same relation to it differently. . . . [Accordingly], the analytical predicate [of an equal protection
“Thus, [t]his initial inquiry is not whether persons are similarly situated for all purposes, but whether they are similarly situated for purposes of the law challenged. . . . Entities are situated similarly in all rele- vant aspects if a prudent person, looking objectively at the incidents, would [deem] them roughly equivalent and the protagonists similarly situated. Much as in the lawyer‘s art of distinguishing cases, the relevant aspects are those factual elements [that] determine whether reasoned analogy supports, or demands, a like result. Exact correlation is neither likely nor necessary, but the cases must be fair congeners. In other words, apples should be compared to apples.” (Citation omitted; internal quotation marks omitted.) Id., 315–16; see also, e.g., Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 140, 157–58, 957 A.2d 407 (2008) (applying equal protection analysis to state constitutional claim).
Establishing that the entities or individuals at issue are similarly situated is a “threshold requirement“; (internal quotation marks omitted) Keane v. Fischetti, 300 Conn. 395, 403, 13 A.3d 1089 (2011); or “analytical predicate” to the equal protection analysis that we apply under both the federal and state constitutions. (Internal quotation marks omitted.) State v. Wright, 246 Conn. 132, 139, 716 A.2d 870 (1998); see, e.g., Ramos v. Vernon, 254 Conn. 799, 826, 761 A.2d 705 (2000); see also, e.g., Darak v. Darak, 210 Conn. 462, 473, 556 A.2d 145 (1989) (seminal Connecticut case on similarly situated analysis). Only after concluding that the entities or persons at issue are similarly situated does the court go on to determine the standard of review applicable to the equal protection analysis. See, e.g., Keane v. Fischetti, supra, 403–406; see also, e.g., State v. Angel C., 245 Conn. 93, 126 and n.37, 715 A.2d 652 (1998). The three well established equal protection standards of review, ranging from most to least deferential to a challenged classification, are rational basis, intermediate scrutiny, and strict scrutiny. See, e.g., State v. Dyous, supra, 307 Conn. 317–18.
The statutory classification by itself cannot serve as the defining difference between the classes, i.e., that one group is named “acquittees” and the other “civil committees,” with respect to establishing whether they are similarly situated. Factual differences, not just statutory distinctions, must exist to render the two groups not similarly situated. See, e.g., Kerrigan v. Commissioner of Public Health, supra, 289 Conn. 162–63 (rejecting argument that gay persons are not similarly situated under state constitution to “persons who choose to marry a person of the opposite sex insofar as each of the plaintiffs [sought] to marry a person of the same sex,” as “the plaintiffs [could] meet the same statutory eligibility requirements applicable to persons who seek to marry” person of opposite sex and had “multitude of characteristics” in common with opposite sex couples with respect to desire for marriage). In the present case, the threshold question that we must resolve is whether an insanity acquittee is similarly situated to a civilly committed inmate for purposes of considering an extension of commitment.
C
Similarly Situated Analysis
Highlighting his therapeutic progress during his term of commitment to the custody
Whether an insanity acquittee who has reached the end of his initial term of commitment is similarly situated to a civilly committed inmate for purposes of equal protection challenges under the United States constitution presents an issue of first impression for this court. When Connecticut‘s appellate courts have considered equal protection challenges to
‘‘The similarly situated analysis is not a precise formula, but . . . what is clear is that similarly situated [comparators] must be very similar indeed. . . . This is true because the [e]qual [p]rotection [c]lause does not require things which are different in fact or opinion to be treated in law as though they [are] the same.‘’ (Citations omitted; internal quotation marks omitted.) Monarch Beverage Co. v. Grubb, 138 F. Supp. 3d 1002, 1008 (S.D. Ind. 2015), aff‘d sub nom. Monarch Beverage Co. v. Cook, 861 F.3d 678 (7th Cir. 2017).
In turning to state and federal case law that has considered whether insanity acquittees and those who are committed under civil proceedings—including civilly committed inmates—are similarly situated, we begin with the broad language in the United States Supreme Court‘s decision in Jones v. United States, supra, 463 U.S. 354. In Jones, the court considered 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.‘’ Id., 356. This question arose in the context of a statutory scheme providing for indefinite and automatic commitment of insanity acquittees, with hearings to consider release held every six months thereafter. See id., 356-58 and n.2, 361.
In rejecting the challenge, the United States Supreme Court held broadly that, ‘‘when a criminal defendant establishes by a preponderance of the evidence that he is not guilty of a crime by reason of insanity, the [federal] [c]onstitution permits the [g]overnment, on the basis of the insanity
Although the court in Jones stated that it was not considering the constitutionality of the differences between the release procedures in that case as applicable to insanity acquittees and civilly committed inmates; see Jones v. United States, supra, 463 U.S. 363 n.11; numerous state and federal courts have applied Jones’ expansive language in holding that civil committees and insanity acquittees are not similarly situated for purposes of release. Notably, in Glatz v. Kort, 807 F.2d 1514 (10th Cir. 1986), the United States Court of Appeals for the Tenth Circuit rejected a facial challenge to Colorado‘s insanity acquittee release statutes, holding that ‘‘[i]nsanity acquittees and involuntary civil committees are not similarly situated groups for equal protection purposes.‘’ (Emphasis added.) Id., 1522. The court emphasized that ‘‘the insanity acquittee has confessed to committing a criminal act earlier and the grand jury or the court has found probable cause to believe that he did in fact commit the act,‘’ which renders it ‘‘not unreasonable to conclude that an insanity acquittal supports an inference of continuing mental illness. . . . These differences dramatically distinguish the involuntary civil committee and make an equal protection comparison
Numerous other federal and state decisions are consistent with the reasoning of Glatz, holding that the different origins of their commitments—and particularly the insanity acquittees’ commission of criminal acts—render insanity acquittees and civilly committed individuals not similarly situated for purposes of release. See, e.g., Hartman v. Summers, 878 F. Supp. 1335, 1345-47 (C.D. Cal. 1995), aff‘d, 120 F.3d 157 (9th Cir. 1997); People v. Wilder, 33 Cal. App. 4th 90, 104-105, 39 Cal. Rptr. 2d 247 (1995); Lidberg v. Steffen, 514 N.W.2d 779, 784 (Minn. 1994); Reiter v. State, 36 P.3d 586, 594-96 (Wyo. 2001); see also, e.g., Ernst J. v. Stone, 452 F.3d 186, 201 (2d Cir. 2006) (observing that, ‘‘[i]n the absence of any direct guidance from the [United States] Supreme Court regarding whether its analysis in Jones extends to recommitment proceedings, one could argue that because [civilly committed inmates]‘’ have not ‘‘acknowledged that they suffer from mental illness‘’ that ‘‘caused them to engage in criminal conduct,‘’ they ‘‘are not [similarly situated] to [conditionally released insanity acquittees] and therefore may be subjected to lower standards of proof in recommitment proceedings‘‘); cf. Warren v. Harvey, 632 F.2d 925, 928, 930-32 (2d Cir.) (rejecting due process challenge to previous Connecticut statute requiring state to prove dangerousness at insanity acquittee release hearing by preponderance of evidence because ‘‘[t]he obvious difference between insanity acquittees and other persons facing commitment is the fact that the former have been found, beyond a reasonable doubt, to have committed a criminal act‘’ and ‘‘have ‘proved’ themselves a danger to society at one time,‘’ whereas nonacquittees ‘‘have not been found by any [fact finder] to have harmed society as a result of their mental illness‘‘), cert. denied, 449 U.S. 902, 101 S. Ct. 273, 66 L. Ed. 2d 133 (1980).
The acquittee contends, however, that the United States Supreme Court has ‘‘issued three seminal equal protection rulings regarding involuntary commitment,‘’ namely, Jackson v. Indiana, 406 U.S. 715, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972), Humphrey v. Cady, 405 U.S. 504, 92 S. Ct. 1048, 31 L. Ed. 2d 394 (1972), and Baxstrom v. Herold, 383 U.S. 107, 86 S. Ct. 760, 15 L. Ed. 2d 620 (1966). He quotes the decision of the District of Columbia Circuit Court of Appeals in United States v. Ecker, 543 F.2d 178, 197 n.74 (D.C. Cir. 1976), cert. denied, 429 U.S. 1063, 97 S. Ct. 788, 50 L. Ed. 2d 779 (1977), to argue that the Jackson/Humphrey/Baxstrom ‘‘trio of cases has produced the Baxstrom principle, which states that the [s]tate cannot withhold from a few the procedural protections or the substantive requirements for commitment [or release] that are available to all [other civil committees].‘’ (Internal quotation marks omitted.) Citing footnote 34 in Ecker, the acquittee also contends that ‘‘[t]he Baxstrom principle applies equally to acquittees who reach the maximum sentence for the underlying index offense(s).‘’ See United States v. Ecker, supra, 188 n.34 (‘‘equal protection requires [that] the standards governing the release of criminal [acquittees], who have been confined for a period equal to the maximum sentence authorized for their crimes, to be substantially the same as the standards applicable to civil committees‘‘).
We disagree with the acquittee‘s reading of the Jackson, Humphrey and Baxstrom decisions. As Jones recognized, none of these United States Supreme
Seeboth v. Allenby, 789 F.3d 1099, 1106 (9th Cir. 2015) (concluding that, contrary to claim by sexually violent predator, ‘’Baxstrom did not sweep so broadly‘’ to establish ‘‘that, in the arena of involuntary civil commitment, a state may not deny a right to one group of committed persons that it confers on another group of committed persons‘‘), cert. denied sub nom. Seeboth v. Ahlin, 577 U.S. 1147, 136 S. Ct. 1168, 194 L. Ed. 2d 190 (2016); Francis S. v. Stone, 221 F.3d 100, 113 (2d Cir. 2000) (concluding that ‘’Baxstrom [was] not decisive‘’ in insanity acquittee case because ‘‘[the petitioner in Baxstrom] had never been adjudicated mentally ill based on his own plea; he was a prisoner [who] prison authorities had administratively determined should be confined in a prison hospital‘‘); see also, e.g., T. Hafemeister & J. Petrila, ‘‘Treating the Mentally Disordered Offender: Society‘s Uncertain, Conflicted, and Changing Views,‘’ 21 Fla. St. U. L. Rev. 729, 743-44 (1994) (‘‘Led by the United States Supreme Court, the courts have reversed their earlier position which had suggested that all [mental] patients were equal. Instead, it is now apparent that disparate rules governing the confinement of [insanity acquittees] are permissible.‘’ (Footnote omitted.)).
As this court concluded in Long I in rejecting a rational basis challenge, and consistent with federal case law in the wake of Jones v. United States, supra, 463 U.S. 363, 370, ‘‘unlike a civilly committed inmate, an acquittee has proven to the fact finder that his mental disease or defect caused him to commit a crime, thereby establishing a legal nexus between the acquittee‘s mental illness and the criminal act.‘’ State v. Long, supra, 268 Conn. 540. There is no such inextricable connection between criminal behavior and civil commitment. In the case of a civilly committed inmate, the inmate‘s mental illness and the associated danger to himself or others may develop many years after the commence-ment of the inmate‘s sentence for a criminal conviction arising from conduct that has no connection at all to the inmate‘s mental illness. In this respect, a civilly committed inmate is no different from any other civilly committed individual, other than the role of the Department of Correction in the custody of that individual before and after his commitment to the custody of the Commissioner of Mental Health and Addiction Services for psychiatric treatment. See
Accordingly, we are persuaded that the distinctions between insanity acquittees and civilly committed inmates render these groups not fair congeners. Fundamentally, the fact that insanity acquittees’ mental illnesses have been proven to lead to criminal activity sufficiently distinguishes that group from civilly committed inmates for purposes of commitment. In other words, because the groups are postured differently, the law does not demand that they be treated the same. Thus, we conclude that the acquittee is not similarly situated to a civilly committed inmate for equal protection purposes.
Although we do not review the acquittee‘s state constitutional argument; see footnote 4 of this opinion; we address his reliance on State v. Metz, supra, 230 Conn. 424-25, to the extent that it bears on our conclusion that the acquittee is not similarly situated to a civilly committed inmate. The acquittee asserts that to do oth-erwise would ‘‘[impose] the never-ending presumption of dangerousness that Metz forbids.‘’ We can see the surface level appeal of this reliance on Metz, but we ultimately disagree with the acquittee‘s argument.
In considering the equal protection challenge to
In dictum, the court in Metz observed that its ‘‘conclusion finds additional support in the equal protection clause of our state constitution, which forbids discrimination on the ground of mental illness. If the defendant were not suffering from mental illness, the state could not constitutionally confine him beyond the maximum term of his criminal convictions. Although the state may well have a compelling interest in the continued commitment of acquittees whose mental illness[es] [make] them dangerous to themselves or others . . . that interest arises only when the state has shouldered the burden of establishing the existence of the underlying facts. . . . Because the underlying criminal conduct may be relatively minor, and indeed need not involve a crime of violence, the presumption of the existence of facts warranting the defendant‘s commitment does not survive the expiration of the maximum term of criminal sanctions.‘’ (Citations omitted.) Id., 425-26.
Although Metz provides some support for the acquittee‘s position, it is a statutory interpretation case that does not dictate whether insanity acquittees and civilly committed inmates are similarly situated
Although this court‘s conclusion in State v. Metz, supra, 230 Conn. 425, to apply the same burden of proof as between the two groups may have mitigated a due process issue given the liberty interest created by the maximum term of confinement under
fore correctly
II
We next turn to the acquittee‘s claim that the Appellate Court incorrectly concluded that the trial court‘s factual finding that the acquittee poses a continued risk of danger to himself or others was supported by clear and convincing evidence. See id., 494. The acquittee claims that there is no evidence of his dangerousness, rendering the trial court‘s finding clearly erroneous. The acquittee contends that the trial court‘s ‘‘findings [did] not establish imminent danger and erroneously task[ed] [him] with establishing [that] he is ready for discharge,‘’ characterizing ‘‘[t]he evidence of potential dangerousness to children and/or women [as] particularly weak.‘’ Emphasizing ‘‘the temporal remoteness of the index offenses,‘’ the acquittee argues that he ‘‘has had success in his community placement and [has] made considerable progress toward discharge from the [board],‘’ with ‘‘the record . . . devoid of evidence of dangerous behavior . . . directed at schoolchildren, either on hospital grounds or in the community . . . .‘’ Criticizing the Appellate Court‘s decision as upholding impermissible speculation, the acquittee describes his conduct toward women in the hospital, about which the Appellate Court and trial court were concerned, as ‘‘inappropriate relative to hospital or societal norms,‘’ but he contends that evidence of this conduct does not satisfy ‘‘the [state‘s] heavy burden of establishing risk of imminent physical injury to a woman.‘’ We disagree and conclude that the Appellate Court properly upheld the trial court‘s finding that reasonable cause exists to believe that the acquittee‘s discharge would constitute a danger to himself or others.
As previously discussed,
‘‘[T]he confinement of insanity acquittees, although resulting initially from an adjudication in the criminal justice system, is not punishment for a crime. The purpose of commitment following an insanity acquittal, like that of civil commitment, is to treat the individual‘s mental illness and [to] protect him and society from his potential dangerousness. The committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous. . . . As he was not convicted, he may not be punished. His confinement rests on his continuing illness and dangerousness. . . .
‘‘The determination as to whether an acquittee is currently mentally ill to the extent that he would pose a danger to himself or the community if discharged is a question of fact and, therefore, our review of this finding is governed by the clearly erroneous standard. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed . . . .‘’ (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Damone, 148 Conn. App. 137, 164-65, 83 A.3d 1227, cert. denied, 311 Conn. 936, 88 A.3d 550 (2014); see also, e.g., State v. March, 265 Conn. 697, 710-11, 830 A.2d 212 (2003); State v. Metz, supra, 230 Conn. 424-26. The trial court ‘‘properly‘’ may ‘‘[credit] the board‘s opinion and rel[y] on its findings‘’ in the report rendered pursuant to
As this court held nearly forty years ago in State v. Putnoki, 200 Conn. 208, 221, 510 A.2d 1329 (1986), ‘‘[t]he determination of dangerousness in the context of a mental status hearing reflects a societal rather than a medical judgment, in which the rights and needs of the [acquittee] must be balanced against the security interests of society. . . . The ... [court‘s] inquiry should focus on whether the person is a danger to himself or others, whether he presents . . . the risk of imminent physical injury to others or self .... [T]he ultimate determination of mental illness and dangerousness is a legal decision . . . [and, in making that determination] the court may and should consider the entire record available to it, including the [acquittee‘s] history of mental illness, his present and past diagnoses, his past violent behavior, the nature of the offense for which he was prosecuted, the need for continued medication and therapy, and the prospects for supervision if released.‘’ (Citations omitted; emphasis added; footnote omitted; internal quotation marks omitted.) State v. Damone, supra, 148 Conn. App. 170-71.
This legal determination of dangerousness is inherently predictive in nature, with the definition of ‘‘dangerousness‘’ being ‘‘necessarily vague‘’ given the difficulty of the prediction, even with the aid of medical expert testimony. State v. Putnoki, supra, 200 Conn. 219-20. Further, in this context, the word ‘‘[i]mminent‘’ does not mean immediate or likely but, rather, simply ‘‘ready to take place‘’ or ‘‘hanging threateningly over one‘s head . . . .‘’ (Internal quotation marks omitted.) State v. Harris, supra, 277 Conn. 389, quoting Merriam-Webster‘s
It is undisputed that the acquittee has a ‘‘psychiatric disabilit[y]‘’ for purposes of
acquittee‘s psychotic disorder induced delusions—when he was not compliant with his medicinal regimen—could seriously endanger the safety of other people, which supports the trial court‘s finding of dangerousness. See, e.g., State v. Putnoki, supra, 200 Conn. 221-22 (index offense is part of ‘‘past violent behavior‘’ factor); State v. Maskiell, 100 Conn. App. 507, 509, 523-24, 918 A.2d 293 (2007) (considering acquittee‘s sexual assault index offenses and pedophilia in connection with risks posed by release), cert. denied, 282 Conn. 922, 925 A.2d 1104 (2007).
We agree with the acquittee that the index offenses are an appropriate consideration in the trial court‘s dangerousness assessment but are not determinative, particularly given the length of his commitment to the custody of the board. The acquittee has had an approximately two decade commitment that was marked by some difficult years spanning from 2003 to at least 2017. The acquittee had difficulty with his transition from the hospital setting that commenced in 2012, losing permission for temporary overnight leaves in 2013 and 2014 as a result of noncompliance with rules, including assaulting another patient. As aptly noted by the Appellate Court, he also engaged in inappropriate and impulsive behavior toward females, including socially inappropriate comments of a sexual nature, before ultimately transitioning to a residential program in Bridgeport in 2017. See State v. Foster, supra, 217 Conn. App. 489-90 and n.7.
The acquittee has also had some progress intermittently within those years and even more so after 2017, when the board transitioned him to conditional release status with increasing amounts of privileges and independence. Although consideration of the acquittee‘s entire history is important, given the length of his commitment, we place particular emphasis on his mental status in the years closest to the petition at issue, which was filed in July, 2019, and which resulted in the board‘s report dated August 27, 2019. Cf. State v. Putnoki, supra, 200 Conn. 223 (‘‘[a]n individual‘s mental and emotional status does not remain static‘‘).
Most significant, it was not until 2018, just one year before the state filed the petition for continued commitment that is at issue in this appeal, that the acquittee reached a level of compliance with taking medication and progress sufficient to be granted conditional release. In that approximately one year period during which the acquittee was on conditional release, the acquittee‘s treaters and evaluators expressed concerns with his discharge from board custody given the short period of time during which he had demonstrated compliance while under supervision on conditional release.
First, Michael Genovese, a licensed clinical social worker, indicated that the acquittee‘s behavior toward women remained
We recognize that the present case, which involves an insanity acquittee who had made progress in his recovery while on conditional release in the community during a lengthy commitment in the custody of the board, presents a circumstance that may well approach the outer limits of when continued commitment to the custody of the board is justified.14 Especially given the inherently predictive nature of the dangerousness determination; see, e.g., State v. Putnoki, supra, 200 Conn. 219-20; we agree with the Appellate Court that the degree to which the acquittee‘s progress is a product of the services, structure, and support that he is receiving while on conditional release is a significant factor in the dangerousness analysis, insofar as denying the peti-
tion for continued commitment would mean that the acquittee would no longer be required to take advantage of that framework. See State v. Foster, supra, 217 Conn. App. 493-94. In this respect, an acquittee‘s willingness to continue treatment and supervision voluntarily is relevant but does not otherwise defeat a finding of dangerousness. See, e.g., State v. Maskiell, supra, 100 Conn. App. 523-24.
Put differently, the imminence aspect of the dangerousness analysis; see, e.g., State v. Harris, supra, 277 Conn. 388-89; requires the trial court to consider what may readily happen when an insanity acquittee is no longer required to take medication, to attend counseling, or to have other restrictions in place that may remove potential stressors or triggers. See, e.g., State v. Damone, supra, 148 Conn. App. 139-40, 162, 171-75 (upholding trial court‘s recommitment of acquittee, whose index offenses included multiple sexual assaults, even when his major depressive order was in remission with medication and when he was able to hold full-time employment, as acquittee‘s stability was preserved by board‘s supervision of treatment and was otherwise at risk given his occasional self-medication with narcotics); State v. Jacob, 69 Conn. App. 666, 684-85, 798 A.2d 974 (2002) (considering acts of violence that occurred many years prior to hearing and concluding that acquittee‘s ‘‘significant progress toward recovery,‘’ including ‘‘extended‘’ leaves from hospital and fact that he no longer ‘‘require[d] any psychotropic medications,‘’ did not undercut trial court‘s finding of dangerousness when lack of recent dangerous conduct was ‘‘due, in part, to the progress he ha[d] made since the time of his original commitment and, in part, to the fact that he ha[d] been confined, supervised and receiving treatment and, therefore, was less likely to [engage in such conduct]‘‘). That the acquittee in the present case has demonstrated significant clinical progress over only a relatively short period of his lengthy commitment to the custody of the board, and only with the aid of significant support and conditions during his conditional release, supports the trial court‘s dangerousness finding in this case.
We disagree with the acquittee‘s argument that considering an insanity acquittee‘s progress over time, and the extent to which it is the product of the conditions of his commitment, violates State v. Metz, supra, 230 Conn. 425-26, by shifting the burden of proof from the state to the acquittee. In considering whether the state has proven dangerousness by clear and convincing evidence, the trier of fact must consider, in light of
court could have considered the one year time frame insufficient, especially in light of the testimony from medical providers (in particular, that of the psychiatrists, Trueblood and Westphal) who expressed concern with how the acquittee would fare upon discharge.
The acquittee, however, argues that the board‘s concerns are ‘‘overstated‘’ because, although his ‘‘conduct while in the hospital may have been inappropriate relative to hospital or societal norms . . . it does not [satisfy] the heavy burden of establishing risk of imminent physical injury to a woman.‘’ The acquittee relies on the testimony, before the board, of his individual psychotherapist, Daniel Papapietro, to the effect that the reported inappropriate touching was ‘‘not sexualized,‘’ and, instead, ‘‘[i]t‘s touching one on the shoulder, [or] on their back. It‘s a childlike flirtatiousness.‘’ Indeed, Papapietro and Rodriguez testified that they did not believe that the acquittee would pose a risk were he to reenter the community without conditions. Rodriguez also testified as to the acquittee‘s intention to continue his treatment.
The trial court was not obligated to credit the testimony of Papapietro and Rodriguez to this effect. It is well settled that, although trial courts may ‘‘attach special weight to the testimony of medical experts at a hearing to determine mental status,‘’ that testimony is not binding because ‘‘psychiatric predictions of future dangerousness are tentative at best and are frequently conceded, even within the profession, to be unreliable.‘’ State v. Putnoki, supra, 200 Conn. 219-20. The trial court is free to reject a treating clinician‘s testimony in favor of crediting the board‘s determination as to dangerousness because ‘‘the goals of a treating psychiatrist frequently conflict with the goals of the criminal
justice system. . . . [Whereas] the psychiatrist [is] concerned primarily with therapeutic goals, the court must give priority to the public safety ramifications of releasing from confinement an individual who has already shown a propensity for violence.‘’ (Citations omitted.) Id., 220-21. Given the prioritization of public safety under
Finally, in upholding the trial court‘s finding of dangerousness, we emphasize that our opinion is limited to the record in connection with this petition, which was filed in July, 2019, more than five years prior to oral argument before this court, and which reflects only approximately one year of conditional release—with Westphal‘s recommendation to grant conditional release status emphasizing that ‘‘substantial conditions‘’ were required to keep the acquittee from posing a danger to himself or others. The acquittee‘s continued therapeutic progress; see, e.g., State v. Putnoki, supra, 200 Conn. 222-23; and the extent to which the most recent petition for recommitment has become even further removed from the index offenses, should inform the decision on any subsequent petitions for recommitment under
The judgment of the Appellate Court is affirmed.
In this opinion McDONALD, D‘AURIA, ALEXANDER and DANNEHY, Js., concurred.