State v. FouchaState v. Foucha
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The issues in this case are whether defendant is dangerous to others or to himself under
Terry Foucha was charged by bill of information with committing aggravated burglary of an inhabited dwelling while armed with a .357 revolver in violation of
When a person has been committed after pleading not guilty by reason of insanity, the burden is upon the committed person to prove that he can be released without danger to others or to himself.
Next, we consider defendant‘s contention that the dangerousness test of
In Hickey, a class of insanity acquittees challenged Washington‘s criminal commitment and release procedures. They contended that the disparity between civil and criminal procedures denied them equal protection. The Ninth Circuit acknowledged differences in the civil and criminal procedures and held that the differences did not violate equal protection. The court reasoned:
The differences in review procedure reflect justifiable distinctions regarding the treatment of each class.
... The state has a substantial interest in avoiding premature release of insanity acquittees, who have committed acts constituting felonies and have been declared dangerous to society. Because “the insanity acquittal supports an inference of continuing mental illness,” Jones v. United States, [463 U.S. 354, 366, 103 S.Ct. 3043, 3050, 77 L.Ed.2d 694 (1983)], the state‘s interest in protecting society and the acquittee himself justifies placing the burden on insanity acquittees to show that they no longer present a danger. See Powell v. Florida, 579 F.2d 324, 333 (5th Cir.1978).
Hickey, 722 F.2d at 548. The court also rejected the insanity acquittees’ due process challenge based on the United States Supreme Court‘s opinion in Jones:
In Jones v. United States, the Court rejected a due process challenge to a District of Columbia statute that calls for automatic commitment of criminal defendants who successfully invoke the insanity defense. Jones however, precludes a due process challenge to the Washington commitment procedures. Jones does not directly address procedures for review and release of insanity acquittees. Nevertheless, the rationale of Jones compels us to reject this due process attack.
Id. (citations omitted). Similarly, the Fourth Circuit in Harris rejected an insanity acquittee‘s due process and equal protection claims:
[W]e face the ... question of whether a person may be incarcerated solely because he is dangerous. We hold that it is not a denial of due process for a person who has committed a criminal act to be incarcerated as long as he is considered dangerous. Nor do we think that this aspect of Virginia‘s scheme denies equal protection because a different standard (i.e., insane and dangerous) is used for persons other than insanity acquittees. Again, we think that the fact that an insanity acquittee has already been shown beyond a reasonable doubt to have committed at least one dangerous act justifies the distinction Virginia has drawn. See United States v. Ecker, 543 F.2d 178 (D.C.Cir.1976), cert. denied, 429 U.S. 1063 [97 S.Ct. 788, 50 L.Ed.2d 779]... (1977) (upholding the use of a different standard for determining if insanity acquittees should remain committed than is used for other committed persons).
In Louisiana, a defendant found not guilty by reason of insanity in a non-capital felony case is committed to a mental institution only if the trial court determines that the defendant cannot be released without danger to others or to himself.
Civil commitment procedures are set forth in Title 28 of the Louisiana Revised Statutes. Physicians may issue an emergency certificate for an involuntary fifteen-day commitment of a dangerous mentally ill person,
We find that the differences in Louisiana procedure reflect justifiable distinctions between persons civilly committed and persons found not guilty by reason of insanity. As the Ninth Circuit stated in Hickey:
The class of insanity acquittees is composed of those committed by a different arm of the state for different reasons than civil committees. The different procedures are substantially related to the purposes of each statute and do not reflect discrimination against insanity acquittees. Our holding “accords with the widely and reasonably held view that insanity acquittees constitute a special class that should be treated differently from other candidates for commitment.” Jones v. United States, [463 U.S. at 370, 103 S.Ct. at 3053].
Hickey, 722 F.2d at 547. Accordingly, the dangerousness test of
To determine whether a procedure satisfies due process, we must balance three factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). The United States Supreme Court stated in Jones:
It is clear that “commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.” Addington v. Texas, 441 U.S. 418, 425 [99 S.Ct. 1804, 1809, 60 L.Ed.2d 323] ... (1979). Therefore, a State must have “a constitutionally adequate purpose for the confinement.” O‘Connor v. Donaldson, 422 U.S. 563, 574 [95 S.Ct. 2486, 2493, 45 L.Ed.2d 396]... (1975).
Jones, 463 U.S. at 361, 103 S.Ct. at 3048. We find that the protection of society and defendant are constitutionally adequate purposes for continuing defendant‘s confinement. “There can be little doubt that in the exercise of its police power a State may confine individuals solely to protect society from the dangers of significant antisocial acts....” O‘Connor v. Donaldson, 422 U.S. 563, 582-83, 95 S.Ct. 2486, 2497, 45 L.Ed.2d 396 (1975) (Burger, C.J., concurring). Hence, the dangerousness test of
In sum, we find that the trial court did not abuse its discretion in finding that defendant did not prove that he could be released without danger to himself or others, and that the dangerousness test of
DECREE
For the reasons assigned, the judgment of the trial court is affirmed.
CALOGERO, C.J., dissents for reasons assigned by DENNIS, J.
DENNIS, J., dissents with reasons.
DIXON, C.J., dissents for reasons assigned in State v. Perez, 563 So.2d 841.
DENNIS, Justice.
I respectfully dissent.
The question presented is whether a person, who was committed to a mental hospital upon being acquitted of a criminal offense by reason of insanity, must be released when he is no longer mentally ill, although he may still be a danger to himself or others.
Due Process
The United States Supreme Court answered this question on due process grounds in Jones v. United States, 463 U.S. 354, 370, 103 S.Ct. 3043, 3052, 77 L.Ed.2d 694 (1983) when it said:
We hold 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 Constitution permits the Government, on the basis of the insanity judgment, to confine him to a mental institution until such time as he has regained his sanity or is no longer a danger to himself or society.
It is true that the Supreme Court enunciated this holding in a case dealing with a different factual situation from that presented here. In Jones the issue was whether the petitioner, an insanity acquittee, had to be released because he had been hospitalized for a period longer than he might have served in prison had he been convicted. But I think it is self evident that the court intended its due process interpretation to be a neutral principle to be applied in all situations involving the confinement of insanity acquittees. The high court held that the length of the sentence that an insanity acquittee might have received had he been convicted was irrelevant because the two essential requirements of his confinement were his insanity and his danger to himself or to society; when one of these ceases he must be released, regardless of whether that occurs before or after the lapse of a hypothetical sentence he might have served had he not been acquitted. Id. 463 U.S. at 369, 103 S.Ct. at 3052.
Moreover, that Due Process will not permit a state to commit or continue to confine someone, civilly or criminally, without proof that he is both mentally ill and dangerous to himself or society was not only explicit in the court‘s holding and reasons but also implicit in its assumptions and analysis.
The petitioner in Jones, an insanity acquittee who had been hospitalized for longer than the one year he might have served for the petit larceny of which had been exonerated, based his argument on Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), “in which the Court held that the Due Process clause requires the government in a civil-commitment proceeding to demonstrate by clear and convincing evidence that the individual is mentally ill and dangerous.” Jones, 463 U.S. at 362, 103 S.Ct. at 3048. He contended that these due process standards were not met in his case because the judgment of not guilty by reason of insanity did not constitute a finding of present mental illness and dangerousness and because it was established only by a preponderance of the evidence. Id. Therefore, he asserted, because an insanity acquittee‘s confinement is not based on a finding that he is both dangerous and mentally ill, the only conceivable legitimate justification for the automatic commitment and confinement of an insanity acquittee is to ensure that he does not escape confinement entirely. Because Jones had been confined longer than the prison term he might have received, he argued, this purpose had been fulfilled and he should be released.
The Supreme Court accepted Jones’ argument that Due Process requires the government, in order to commit an insanity acquittee, to demonstrate that he is both mentally ill and dangerous, the same as it must in a civil-commitment proceeding. The Court rejected only his contentions that (1) a verdict of not guilty by reason of insanity lacks sufficient probativeness of both mental illness and dangerousness to justify commitment of the acquittee for the combined purpose of treatment and the protection of himself and society, id. 463 U.S. at 363-366, 103 S.Ct. at 3049-51; (2) an insanity acquittee‘s proof of his insanity in a criminal proceeding is based only on a preponderance of the evidence, as compared to the Addington v. Texas civil-commitment requirement of proof by clear and convincing evidence, id. 463 U.S. at 366-368, 103 S.Ct. at 3050-52; and (3) that he nonetheless was entitled to his release because he had been hospitalized for a period longer than he could have been incarcerated if convicted, id. 463 U.S. at 368-370, 103 S.Ct. at 3050-53.
Indeed, the Supreme Court in Jones made it clear that because “`commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection‘” quoting Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1809, 60 L.Ed.2d 323 (1979), a state must have “`a constitutionally adequate purpose
In the present case, the relator, Terry Foucha, was charged with aggravated burglary,
Applying the Due Process principles announced by the United States Supreme Court in Jones v. United States, supra, to this case, I conclude that the relator, a committed insanity acquittee, has clearly demonstrated that he has recovered his sanity, is no longer suffering from a mental illness, and is therefore entitled to be released on probation.
For well reasoned opinions in accord, see Hopkins v. Lynn, 888 F.2d 35, 37 n. 2 (5th Cir. 1989)(Noting that the Circuit‘s previous expression that only presently mentally ill insanity acquittees may be confined is consistent with Jones v. United States, where the Supreme Court stated that an insanity acquittee‘s continued “confinement rests on his continuing illness and dangerousness.” Supra, 463 U.S. at 369, 103 S.Ct. at 3052.); Francois v. Henderson, 850 F.2d 231, 236 (5th Cir.1988) (“[C]onfinement of insanity-acquittees solely on a finding of dangerousness ... [makes] the mental institution the substitute for the prison in Louisiana [and] violates the Constitution.“); Jackson v. Foti, 670 F.2d 516 (5th Cir. 1982). The authorities relied on by the majority for the opposite proposition are weak. Harris v. Ballone, 681 F.2d 225 (4th Cir.1982) was decided prior to the Supreme Court‘s decision in Jones v. United States and is direct conflict with what the high court said in Jones. In Hickey v. Morris, 722 F.2d 543 (9th Cir.1984) the court upheld a Washington statute placing the burden on insanity acquittees to show that they no longer present a danger, but the statute also provided that insanity acquittees cannot be confined longer than the maximum penal term for the crime charged, unlike the majority‘s holding in the present case which permits confinement of insanity acquittees on dangerousness alone indefinitely, perhaps for life, and clearly for periods far in excess of the time they would have served had they not been acquitted of the crimes with which they were charged.
Equal Protection
The protection of equal laws demands that a state afford insanity acquittees substantially the same protections that it gives persons committed under the ordinary civil commitment statute. Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966); 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); Jackson v. Foti, 670 F.2d 516 (5th Cir.1982); Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642 (1968); Powell v. Florida, 579 F.2d 324, 332 (5th Cir.1978). Accordingly, if Louisiana‘s current insanity-acquittee provisions are interpreted and applied literally and mechanistically in disregard of constitutional principles, as the majority does herein, they clearly do not afford insanity acquittees equal protection of the laws with respect to release from commitment. I agree with the analysis by the Court of Appeals in Francois v. Henderson, 850 F.2d 231, 236 (5th Cir.1988) setting forth the reasons that the Louisiana statutes, if literally interpreted, do not give insanity acquittees protection substantially equal with that afforded to civil committees:
As presently constituted,
La.R.S. 28:59(A) provides: “Any person acquitted of a crime or misdemeanor by reason or insanity or mental defect may be committed to the proper institution in accordance with Code of Criminal Procedure Arts. 654 et seq.” Those articles of the Code of Criminal Procedure provide for the commitment of an insanity acquittee following a hearing to determine the single issue of dangerousness.La.C.Cr.P. art. 654 . Hearings on applications for release are likewise limited solely to the dangerousness issue.La.C.Cr.P. art. 655 -657. There is no requirement that there be a finding of mental illness, either initially or upon application for release. The only relevant inquiry is the dangerousness element.This legislative change has provided for confinement of insanity-acquittees solely on a finding of dangerousness, and has made the mental institution the substitute for the prison in Louisiana. This violates the Constitution. Jackson v. Indiana, 406 U.S. at 724-25, 92 S.Ct. at 1851-52; Baxstrom v. Herold, 383 U.S. at 111-12, 86 S.Ct. at 762-63; Jackson v. Foti, 670 F.2d at 522 (“The propensity for danger is not enough.“); Powell v. State of Florida, 579 F.2d 324, 332 (5th Cir.1978).
Conclusion
Something is drastically wrong with a legal system that permits a person who is no longer mentally ill to be confined indefinitely, perhaps for life, in an institution for the criminally insane simply because he was acquitted of a crime (on the basis of insanity at the time of the offense), a crime for which, had he been convicted instead, he may have received a sentence of only a few months or years. In this respect the system is morally bankrupt and clearly violates fundamental notions of due process and equal protection of law. The teachings of the Supreme Court and Fifth Circuit decisions make this manifestly evident. In my opinion the majority has defaulted in its duty to afford the relator these basic safeguards and has advanced no convincing reason for its failure to do so.