*1 PLAINTIFF-RESPONDENT, JERSEY, STATE OF NEW KROL, DEFENDANT-APPELLANT. STEFAN February August 4, Argued 1975. 1975 Decided *6 Mr. Shale, Michael G. Assistant Deputy Public Defender, the cause argued for appellant (Mr. Stanley Ness, G. Van Defender, Public Mr. attorney; Zamrin, Steven Assistant Defender, Public Deputy counsel and on the brief). William Mr. Welaj, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney Gen- eral of New Jersey, attorney; Mr. Welaj of counsel and on the brief). was delivered by of the Court
The opinion unlike An of insanity, ashman, P J. on grounds acquittal free the automatically does not criminal simple acquittal, 2A:163-3,1 N. J. A. statute, defendant. The governing if finds the defendant not provides jury guilty then insanity, special finding reason it must make continues”; whether “insanity defendant’s it finds defendant’s or “insanity” “continue,” does defendant dered confined the Trenton “until Psychiatric Hospital such as he may time be restored reason.” This confine ment is for an indefinite of time, and period may prove per manent, for “restoration reason” re merely requires mission of acute but under symptoms cure of the complete Maik, illness State v. lying personality disorder. A lesser degree improvement suffices to obtain release” only “conditional *7 subject summary to revocation by the court. State Car ter, 64 N. J. 382 Defendant consti the challenges of this tutionality involuntary commitment procedure. Stefan Krol stabbed wife to his death in their He home. was indicted murder and tried the Court, Superior Acquittal ground insanity; findings; 2A:163-3. on of confinement If, upon any indictment, insanity trial of the is the defense of pleaded given charged and it person shall be in evidence that the therein insane was at the time of the commission of offense the charged person acquitted, in such indictment and such shall the be jury required specially by shall be to find their or verdict whether person not such was insane at the time of the commission such person offense acquitted by and to declare or whether not such was insanity by person them reason the of such at time of the the offense, specially by and commission of such to find their verdict insanity continues, jury or also whether not such and if shall the by insanity continue, find their verdict such does the court person custody safe shall order such into and commit him to the Jersey hospital may New state at Trenton until such time as he restored to reason. Although :163-3, N. this case arises under J. S. A. 2A the discussion applies 2A:163-2, provides procedure N. J. S. A. also which guilt insanity establishing reason lack where is competent provisions found not to stand trial. The commitment he Since jury. before County Camden Division in Law homicide, issue only the of the not commission deny did the insane at whether he had been trial was disputed exam- who had Testimony act. of psychiatrists time of the he after death indicated thаt Krol before and his wife’s ined an condition at the from acute schizophrenic was suffering a pow- the influence of time of the acted under killing, his wife was with his employer erful delusion that conspiring murder him. The returned verdict of jury guilty reason of that defendant’s insanity specially and found to S. A. 2A :163- Acting pursuant continued. insanity Poren- committed to the ordered defendant judge trial the Hospital. at Trenton Psychiatric Unit Psychiatric sic commitment order to the Appel- appealed Defendant certification, Division, which affirmed. We granted late essentially found in N. J. the latter are identical to those statute : S. A. 2A: 163-3 disposition Finding insanity; 2A :163-2. any person commitment, If indictment or in confinement under any process, appear assignment judge, insane, under shall to be county judge county person or such is of the court of the in which may, presentation confined, upon application to him and cer- of the provided chapter Statutes, Revised tificates as Title of the inquiry proofs as the mental condition of institute an take * * * person. competent judge sitting It if such shall be for the jury, jury, impanelled, to determine not without one only sanity hearing, as accused at the time of the but charged sanity of the offense well the accused at the time the alleged against him is committed. have been $ # sfr # sfri # & aforesaid, hearing after be determinеd If it shall charged against him time the offense insane at the accused was against committed, charge alleged him shall be been to have proceedings ground and the records so dismissed on this may judge jury, be, *8 event, case shall as the noted. In this any insanity degree continues, separately his in whether find also custody does, him and, him into safe and direct order it shall hospital Trenton, Jersey state to be confined be to the New sent expense by law, provided and maintained as to as as otherwise insane, provided criminal un- for the maintenance otherwise may reason, person restored and no he be so time as such til except upon from confinement released such shall be confined by was committed. which he of the court order stan his contention that to consider N. J. 561 on of persons acquitted commitment involuntary dard J. A. 3A:163-3 N. established insanity grounds clauses of the and equal protection the due process violates a conten constitution, federal amendment to the fourteenth consider in our prior which we have not had occasion to tion Maik, and State v. on this State subject, decisions Carter, supra. I contention, we merits Prior to of this considering issue. On January of a must first dispose procedural this matter before 1975, while the was present pending conditional Court, the Court authorized thе County Camden Krol, release of our decision permitted the re Carter, J. In granting 64 N. 382 (1974). State upon a number of restrictive terms lease, imposed the court “Home for Care” in a Sheltered must reside Krol: he continue Hospital, Psychiatric to Ancora close proximity regularly an outpatient, report treatment as psychiatric his inform the court officer, and regularly a probation limited; release his condition; freedom to travel is his with he comply revoked should not summarily may should his condi release order or of the conditional terms from released defendant Thus while the order change. tion State, it substantial continues of the custody the physical Hence the stated principle, liberty. his upon restraints Court, & Domestic Relations Juvenile County v. Essex Stizza or commitment & A. 1945), L. 408 (E. J. committed after the person be reviewed will not ders liberty all restraints his upon and freed of released been appeal ease. The present not does govern property release. De order for conditional rendered moot by in the interest a real and substantial still has fendant order. commitment validity original Cf. State, 135 Bower v. (1974); 65 N. Parmigiani, *9 York, N. J. Sibron v. New L. Ct. 1947); (Sup. 392 U. S. 40, 50-59, 88 L. S. Ed. 2d 917 have the by Furthermore been informed counsel we has been obtain a half- satisfactory able to un- way house and has fact placement not in been releasеd order, der terms of this he been allowed although a somewhat more limited conditional release under terms an order of the Camden County Court dated August 1, 1975.
II Commitment following reason of in acquittal by sanity is not intended for, to be a punitive, although such implies verdict a finding defendant has committed the reus, actus it also constitutes that he did with finding so out criminal state of is, mind. There effect, no crime Carter, State v. 64 N. J. to at punish. 401; Stern, 40 Super. 291, 296 Div. The (App. 1956). rationale involuntarily such committing persons pursuant N. J. S. A. 2A:163-3 is, rather, to to protect society against who, individuals own, no through culpable fault of their a threat pose public to safety. Chief Justice Weintraub succinctly explained purpose of in his procedure Maik, opinion in State v. supra, 60 N. J. at 213: present purposes For enough say it is all to the doctrines accountability which would excuse an offender from criminal because insanity attempting have common characteristic dis- to tinguish between the sick bad. drawing point to The be stressed is that line between the sick bad, purpose subject no and the there is others harm at mentally contrary, hands of the On the the aim of the ill. law protect injury from the sick as the innocent well the bad. N. J. The anomaly procedure established A. 2A:163-3 is that its ultimate although object society certain who against pose individuals may 11rnfeet any risk of it does not danger, point provide special 'whether the jury into the inquiry by judge question defendant involved in fact such risk. particular poses *10 standard for commitment “in- simply is that defendant’s continues.” The suf- sanity fact that defendant is presently from some fering and degree mental illness that at some in the mental him a point past illness caused commit to act, criminal while sufficient certainly to cause give probable to not, into whether inquire he does in and dangerous, itself, warrant the inference that he a presently poses significant harm, threat of either to to himself or others.2
The consequence procedure who, this is that a defendant despite the fact he still suffers of mental ill- degree some ness, no poses significant danger to neverthe- society, may for an liberty less of his deprived period indefinite is, in effect, time because from dangerousness presumed con- most insanity. problem is acute when of- tinuing the which which, fense committed one although norm, social violating did not itself dangerous involve be- 2 Empirical that, group, persons suffering studies indicate as are, most, only slightly likely from mental illness more to commit general population. g., Guze, harmful acts than the E. Goodwin & Crane, “Criminality Psychiatric Disorder,” Psych. & 20 Arch. Gen. — (1969) ; Rappaport Lassen, “Dangerousness 583 & Arrest Rate Comparisons Discharged Population,” and the General Patients Psychiat. (1965) ; Rappaport, “Dangerousness 121 Am. J. 776 Mentally Criminal,” (1968) ; generally, Ill the 21 S. C. L. Rev. 27 see sz, Law, Liberty Psychiatry, (1963). persons & 144 Even Sza suffering prior from mental illness who have committed criminal acts consistently substantially dangerous have not been shown to be more persons suffering g., Steadman, than other from E. mental illness. Hospitals “Follow-up on for Baxstrom Patients Returned Criminally Insane,” Psychiat. (1973) ; Am. J. Steadman & Adjustment Keveles, Community Activity “The Criminal Psychiat. (1972) ; 1966-1970,” Baxstrom Patients: Am. J. Criminal,” Rubin, Dangerousness Mentally Ill “Prediction in the Psychiat. generally, Diamond, (1972). Arch. See “The Gen. Psychiatric Dangerousness,” Pa. Prediction U. L. Rev. where, case, But even crime is vi-
havior. one, in- contains for procedure olent great potential injustice. dividual defect,
This which involves serious infringement upon liberty, is one of personal constitutional dimensions. Consti tutional principles process any of due state require action bear reasonable state relationship legitimate some Indiana, In Jackson purpose. U. S. L.
1845, 32
Ed. 2d 435
United States Supreme
Court, applying this principle
involuntary
commitment
held
proceedings,
standard
for
commitment
must bear
reasonable
ostensible
relationship
for which the individual
is committed.
purpose
That de
which
cision,
involved
the commitment
incompetency to
mentally
stand trial of a
deficient deaf-mute accused of
restrict
robbery,
armed
did not
which the
purposes
might
involuntarily
state
commit
individuals accused of
*11
crime;
it did
that
the state
tailor its standard
require
commitment to whatever
it
nominally
was
purpose
attempt
Sullivan,
to advance.
v.
F.
ing
Davy
1320,
354
Supp.
Cf.
1329-30
D.
(M.
1973)
Ala.
confined
(holding
persons
as sexual
must be
psychopaths
released
their confinement
—
within
not
the nominal purpose of the statute
pro
'of
tection
public
treatment).
Eurthermore,
must
state
make a
factual
meaningful
determination
toas
actually
defendant
meets
whether
the standard
commit
Indiana,
Jackson v.
406
supra
738-39,
U. S. at
ment.
92
Patterson,
1845;
605,
v.
386
Specht
S.
U. S.
87
Ct.
S. Ct.
Harris,
v.
(1967);
249 may presume not essential facts. simply adjudicatory Cf. Cleveland Bd. Ed. v. La Fleur, U. S. 414 632, 644-46, of Kline, Vlandis v. 791, 94 S. 39 Ct. L. Ed. 52 2d (1974); 412 U. S. 441, 446, 2230, 93 S. Ct. L. Ed. 2d 63 (1972); v. Illinois, Stanley 405 U. S. 645, 1208, L. Ed. Burson, Bell 2d 551 402 U. S. (1972); S. 1586, 29 L. Ed. N. A.
Since
2A:163-3 is
designed
protect
the public against
the risk
of future
behavior
dangerous
persons acquitted by
of
reason
who are still suffer
insanity
Maik,
from
State v.
ing
illness,
mental
principles
of due process enunciated in Jackson and like
re
cases
the standard for
quire
commitment be
cast
terms
mental
continuing
illness and
dangerousness
others,
self
not
in terms
alone,
insanity
and that some
continuing
trier of fact make a
determination
to whether
meaningful
is actually within these stаndards.3
purpose
3Since the
A.
J. S.
held to
2A:163-3
been
protection
society
“bad,”
from
as well as the
the “sick”
holding
here,
challenge
the State does
need not consider
we
principles
process
whether
of due
would bar the State
this context
imposing
massive,
liberty
personal
from
indefinite curtailment
involuntary
any
compelling
involved in
commitment for
reason less
protection
against
society
than
a substantial
threat of conduct
dangerous
g.,
the defendant
to himself or others. See e.
Caralluzzo,
;
Heukelekian,
(1967)
49 N. J.
156 n.
re
1953).
Super.
(App.
in
J.N.
Div.
We note that
recent cases
process
strong
dicate a
trend
due
toward such
construction
g.,
Supp.
(N.
Watkins,
E.
Davis v.
384 F.
clause.
Wayne
1974) ;
County
Hospital,
Bell
F.
D.
General
Ohio
(three-judge court)
Supp.
(E.
;
1974)
D.
Les
Mich.
1095-96
Supp.
(E.
1972)
Schmidt,
sard v.
349 F.
D. Wis.
*12
court)
grounds
remanded,
(three-judge
414
vacated on other
473,
judgment
713,
(1974),
modi
S.
94 S. Ct.
Ill is also considerations compelled by This conclusion equal protection. Herold, 760, Baxstrom 15 107, U. S. 86 S. Ct. 383
L. held that pris Ed. 2d Court Supreme oners had while in who mental illness allegedly developed were, result, involuntarily carcerated and who being as a institutions, entitled under to mental were committed same substantially procedural clause to protection equal involuntary as to civil com subject other persons protections Baxstrom held that mitment. other Among things, in particular same for commitment to mental standard to and to other prisoners per applied had be stitution insti involuntary civil commitment to that subject sons Indiana, 715, Jackson v. 406 U. S. Subsequently, tution. 1845, Ed. 435 (1972), 32 L. 2d the Court applied 92 S. Ct. Baxstrom to determined to incom persons the principle that, on criminal It held ex charges. to stand trial petent a short observation state commit period, cannot cept unless it the same standards for applies such a com person him it other involuntarily does to persons mitment committed.
While
of these
neither
cases deals
with
specifically
commitment of
involuntary
persons ac
problem
Supreme
Court in these
insanity,
reason
quitted
enunciate
broad
plainly attempted
prin
has
opinions
—
the fact that
to be committed
person
ciple
a constitutionally
in criminal acts
engaged
previously
(W.
1974);
Lazaro,
Sup.
E.
Hawkes v.
S.
2d
Ct.
Va.
cf.
Donaldson,
2486,
563,
Ed. 2d
O’Connor v.
422 U.
Ct.
45 L.
S.
S.
Miller,
Supp.
(S.
;
323,
(1975)
Y.
341 F.
D. N.
Gomez
1972)
(three-judge
court),
aff’d mem. 412 U.
93 S.
S.
Fhagen
Miller,
(dictum).
(1973)
Ed. 2d
But
L.
cf.
(Ct. App.
N. Y.
N. Y. S. 2d
251
for
acceptable basis
him a
upon
substantially dif-
imposing
ferent standard or
procedure
involuntary commitment.
The labels “criminal commitment” and “civil commitment”
are
Indiana,
of no constitutional
In Jackson v.
significance.
supra at 406
724-25,
1845,
U. S.
92 S. Ct.
the Supreme
Court clearly indicated that it
as one
regarded
principle
to be applied very broadly
throughout
of various
spectrum
forms of
commitment,
involuntary
including commitment
persons
reason
acquitted by
insanity.
Baxstrom
principles of
and Jackson
-widely
have been
applied by the state courts and the lower federal
courts
overturn procedures for involuntary commitment of persons
acquitted by reason of insanity which deviate substantially
from those
to civil
applied
commitments
E.
Bol
generally.
g.,
Harris,
ton v.
1,
130 U. S.
D. C.
395 F.
642
App.
2d
Neill,
(D. C.
Reynolds
Cir.
v.
1968);
381 F.
1374
Supp.
(N.
1974)
D. Texas
(three-judge
court), vacated and
remanded, sub nom.
v. Reynolds,
Sheldon
1050,
422 U. S.
95
2671,
45
Clemons,
L.
2d
Ed.
State v.
(1975);
P.
110 Ariz.
2d 324
Ct.
(Sup.
In
1973);
re Frank
lin,
7 Cal.
3d
Cal.
Rptr.
P. 2d 465
State,
Mills v.
256 A.
(1972);
2d 752 (Del.
Ct.
Sup.
McQuillan,
v.
1969); People
Mich. 511, 221 N. W. 2d
ex
(Sup.
1974);
Ct.
State
rel.
Schubert,
Kovach v.
Wis.
219 N. W.
2d
2d 341 (Sup. Ct. 1974), appeal
dismissed
U. S.
95 S. Ct.
42 L.
Ed. 2d
Jenkins,
State ex rel. Walker
(1975);
v.
of insanity n. This at 651 50. Id. civilly committed. persons applied McQuillan, supra, People followed been *14 holding Schubert, ex supra. State State ex rel. Kovach v. and Cf. Jenkins, rel. v. Walker suprа. in commitment involuntary standard for civil The J. A. New set in N. 30:4-44: Jersey is out S. patient suffering If from a shall be not mental found to be
illness, discharge the court shall direct his forthwith. J. A. in N. 3 0:4-23: defined S. “Mental illness” person that a shall mean to such an extent “Mental illness” disease requires welfare, own or the care and treatment his afflicted so others, community. or of the welfare of enacted, were 1965, to when the statutes present Prior held could not Jersey consistently person New courts if remain unless, to committed permitted involuntarily be safety own or his imperil he would probably at large, Heukelekian, re 24 N. J. In of others. safety property or State, Accord, v. Aponte Div. 1953). 409 (App. Super. Pessel, N. DiGiovanni v. J. N. J. 450 (1959); Div. mod. on other Super. 1969), grounds 572 (App. W., N. 44 N. J. J. 188 re J. (1970); Super. J. 465 In re Div. 24 N. 1957), (1957); certif. den. (App. R., J. N. A. R. 140 N. J. S. 1947). Although Eq. (Ch. amendments, the 1965 been construed since 30:4-44 has not 30:4-82, definitions, J. A. which the same incorporates N. S. Caralluzzo, N. J. 156 n. 1 in was construed to or so to mean self to “dangerous to continue construction and understand that to be ciety” proper we statute, Hence, A. 30 S. :4-44. of the civil commitment if for involuntary standard equal protection requires reason of persons insanity commitment acquitted civil commitment applicable be identical to proceed- ings generally, be committed has may only lie been to be determined both ill mentally dangerous himself or society.
Constitutional however, principles equal protection, do not that all require persons treated identically. They require only any differences justified treatment be an appropriately state strong interest. Under the so-called “two-tiered” analysis of the fed eral clause, the state need equal protection only show classification, rational basis for its unless it involves “in vidious” standards “fundamental” infringes upon rights, it which case must show a state interest.” “compelling San Antonio Independent School District v. Rodriguez, U. 1, 15, 93 S. Ct. L. Ed. 2d Court, Supreme Jackson Indiana Bax deciding old, strom Her indicated clearly whether differences in commitment procedure between those applicable to per *15 reason by insanity sons and those acquitted applicable subject to civil commitment jus to other must be persons a state interest” or “compelling tified whether some lesser by State interest will suffice. courts considering question Kee, Compare have State v. supra, divided. S. W. 2d McQuillan, with People at 481-82 (rational basis) N. W. n. state It (compelling interest). Indiana, even Jackson v. been that suggested supra rep resents an abandonment of the “two-tiered” Nowak, analysis. the Standards of Review Under “Realigning the Equal — Prohibited, Protection Guarantees Neutral Permis Classifications,” 62 Rev. sive Geo. L. 1071 (1974). we need not into bramble bush leap
Fortunately, case. The distinction between present to decide the commitment for involuntary persons acquitted standard a ra- and other lacks even insanity persons by reason tional basis. rea argues persons by
The State acquitted a hazard to the because pose special public son of insanity a criminal act been convicted committing have they act a the evidence that the by preponderance have proven illness, 64 N. J. DiPaglia, mental State resulted from an therefore constitute they “exceptional and that in whose confinement and treatment class” of persons the factual a arguendo State has interest. special Accepting — assumption upon which this claim is predicated per- sons reason of a hazard by insanity pose acquitted greater — to the than ill public mentally other persons4 argu- ment does not a claim not be support that the State should to establish that a required particular poses to himself danger claim society. The does not it would be more burdensome to persons determine whether such as defendant than it are dangerous generally that, to civil commitment. Its contention persons subject a class, reason of more persons by insanity acquitted are than likely rationally be other does not dаngerous persons, establish that any individual class particular should be confined even if he is not dangerous. which treat Oases persons by reason of as an acquitted insanity “exceptional State, class” as by State, e. Mills urged g., supra; Kearns, Kee, Chase v. State v. supra; supra, have not done inso a response to contention that persons rea- acquitted by son insanity must be shown be to be in- dangerous rather committed but voluntarily response to contention ill, that it must shown that such are persons mentally matter in this dispute case. Such cases hold that per- sons insanity may reason of be committed with- acquitted out fresh determination of they mental illness because have proven at the time of insanity the crime prepon- *16 derance of the evidence and insanity presumed is continue. assumption gone un- factual has not be 4It should noted that Wiehofen, disputed “Institutional Treatment See in the literature. Insanity,” 849, Acquitted by Texas L. Rev. 38 Reason Persons (1960).
255 see, Such arguments, whose soundness best,5 is doubtful at Note 74 L. Colum. Rev. 733, 746-50 are (1974), not perti nent to the contention like that other in persons subject to voluntary commitment, persons by reasons of in acquitted sanity may not be committed without showing danger Robinson, ousness. Johnson v. 509 F. 395, 2d 399 18 n. C. Cir. (D. 1974) (dictum). consideration decisive where personal is liberty involved is that each individual’s fate must be on adjudged the facts of his own case, not on general characteristics of a “class” to which he may be assigned.
IY
Having determined
the commitment provisions
of N. J.
A.
S.
2A: 163-3
N. J. S. A.
(and
are
2A:163-2)
unconstitutional
authorize
they
commit
involuntary
ment without proof
dangerousness,6
the Court cannot
simply
short.
stop
Eevision of the
procedure
disposi
tion of
reason
persons acquitted by
of insanity
ultimately
matter
In
Legislature.
interim,
Court
must
itself
formulate
constitutional and workable pro
so,
cedure.
we
doing
do
claim
the procedures
perhaps
significant
Kee,
5It
that State v.
which we constitute either adopt are to enable expedients one. They simply native the best to function pending justice of to continue the machinery by Legislature. action de insanity, reason by
Eollowing acquittal in State, be сonfined at the may, fendant request 60 for days period a suitable mental institution for that his defendant observation and examination. Proof of mental illness provides criminal conduct was the result custody for rea justification him holding sufficient if he fact should sonable of time determine period indefintely Such for automatic tem procedures committed. from commitment, even porary though deviating procedures uniformly civil commitment have applicable generally, See, Harris, e. Bolton v. 130 g., been U. S. upheld. App. 1, D. F. v. 642, 1969); C. 395 2d 651 C. Cir. State (D. Clemons, Ariz. 79, 110 515 P. 2d 328 Ct. (Sup. Franklin, 126, 141-43, In re 7 101 Cal. Cal. 3d 1973); 562-64, P. 474-76 496 2d Ct. (Sup. 1972); Rptr. McQuillan, Mich. 221 N. W. 2d 511, 524-30, People generally, Hamann, 575-77 (Sup. 1974). See Release Confinement and of Persons Acquitted "The Harv. Insanity,” Leg. 55, Reason of (1966); "Validity statutory Annotation commit provisions institution of one on ment to mental acquitted grounds without formal determination of mental insanity condition at time A. L. R. 3d While acquittal,” (1973). scholarly commentators have differed decisions judicial on place maximum to this period on appropriate the most within commitment, appears to be days of temporary reasonableness.7 range ; Harris, supra (a period) g., 7See, e. at 651 reasonable Bolton 563-64, Franklin, supra, Rptr. P. 2d at 475-76 Cal. re McQuillan, (60 ; People (90 days) 221 N. W. at 577 superintendents days). survey hospital recommenda A revealed year. Note, ranging L. Rev. N. W. U. from several weeks to tions Within, move for in period, may on is men commitment ground definite and, ill8 to remain at tally permitted large general *18 a dan restraints, without some is population likely pose If, to himself or to a ger society. following hearing, court finds that the State has shown by preponderance the evidence9 that defendant is ill is mentally likely and such it should order pose danger, suitable restraints placed defendant’s as to upon liberty so and protect public pro vide defendant with treatment. an appropriate Such order may take the form of confinement to an mental appropriate institution other lesser restraints li upon defendant’s —berty in a participation residential house half-way pro gram, mandatory care, out-patient etc. order The should be society’s very interest in strong molded so as to protect pub a fashion to do so in that min safety lic hut reasonably autonomy defendant’s upon and infringements liberty imizes 8As in N. J. A. the term used S. 30:4-23. require proof in there trend recent cases to a burden of 9While simple greater preponderance
in civil commitment cases
than
g.,
Ballay,
evidence,
App.
59,
e.
In re
157 U. S.
D. C.
F. 2d 648
482
1973)
(D.
;
Schmidt,
Supp. 1078,
C.
Lessard
349 F.
Cir.
1094-95
(three-judge
1972)
court),
grounds
(E.
and
D.
vacated on other
Wis.
473,
713,
(1974),
remanded 414 U. S.
94 S. Ct.
gerousness
cognizant
which inhere
standard,
the difficulties
in such a
a problem
which we discussed in some
our recent decision
depth
Carter,
State v.
64 N. J. 382, 404-05 (1974). Dangerous
ness is a
which involves
substantial
elements
concept
see,
Katz,
&
e. Goldstein
g.,
“Dan
vagueness
ambiguity,
and Mental
Illness:
Some
on the
gerousness
Observation
Decision to Release Persons
Reason of In
Acquitted
Yale L. J. sanity,”
Rubin, “Predic
27 Arch.
Criminals,”
tion of
Dangerousness
Mentally
Gen. Psychiat. 397, 398-99
practical applica-
body
suggesting
10We note that
there is a
of recent case law
process
requires
prior
ordering
the due
clause
custodial care
*19
persons subject
involuntary commitment,
a court must consider
g.,
less
Likins,
restrictive
Supp.
E.
alternatives.
Welsch v.
F.
373
487,
(D.
;
1974)
Schmidt,
501-02
Supp.
Minn.
Lessard v.
F.
349
1078,
(E.
1972),
grounds
1096
D. Wis.
vacated on other
and re
manded,
473,
713,
414
(1974),
judg
U. S.
94
Ct.
S.
The standard
with criminal conduct.
not identical
conduct is
Dangerous
violation of social
merely
involves not
conduct
Dangerous
sanctions, but significant phy
criminal
norms enforced
or substantial de
injury
persons
or
sical
psychological
to be
Persons
in
indefinitely
struction of property.
are
a risk of future conduct
they
carcerated because
present
undesirable. Personal
socially
liberty
merely
which is
value to be sacrificed to protect
of too great
are
autonomy
some
future behavior which
possibility
society against
offensive, or
odd,
against
even
find
may
disagreeable,
which would be
acts
non-dangerous
future
possibility
actually committed. Un
prosecution
for criminal
ground
cannot be suppressed simply
people
objects,
inanimate
like
Carter,
nuisances. State
public
become
may
they
because
Donaldson, 422
405;
O'Connor
U. S.
supra
*20
society,
dangerousness
opinion
is on
of this
focus
the
11While
dangerousness
category
of
to self is not
recognize
of
free
the
we
“Involuntary
g., Stanton,
Pro
See,
Civil Commitment
e.
difficulties.
View,”
Judge’s
Since
ceedings:
N. J. L.
A Trial
ques
case,
present
reserve those
we
us in the
is not before
issue
occasion.
for another
tions
563,
2486,
45 L. Ed.
Cross
(1975);
Harris,
1095,
D. C.
418 F. 2d
U. S. App.
Sullivan,
Davy v.
354 F.
(D.
Supp.
C. Cir. 1969);
D.
Millard
Ala.
(M.
1973)
(three-judge court). Cf.
Harris,
(D.
U.
D. C.
Commitment that there be substantial requires risk of conduct within dangerous foreseeable reasonably of magnitude future. Evaluation the risk involves both of consideration the likelihood conduct of dangerous and the seriousness the harm which ensue such may Harris, 1100-1101; conduct takes Cross v. place. — Civil Commitment “Developments Ill,” Mentally 87 Harv. L. Rev. 1236-40 Livermore, Malin (1974); Mechl, Commitment,” & the Justification for “On Civil quist Katz, & 115 U. Pa. L. Rev. Goldstein (1968); supra is not sufficient that at 235. It state establish that defendant possibility might commit some dangerous acts at some in the indefinite future. The risk time of danger, of the likelihood of such conduct product and the degree ensue, harm which must may be substantial within foreseeable future. On other reasonably hand, certainty is not and cannot prediction required ex reasonably be pected.
A be defendant may dangerous only certain types of situations in connection with with relationships certain An evaluation of dangerousness in such individuals. cases into account likelihood take will must such situations or come into contact with exposed such Harris, Cross v. supra 1101. individuals. See State v. Johnson, P. 8 Or. App. 2d 1386 (Ct. 1972) App. to her potentially dangerous children but was (defendant have access to see unlikely them); generally, Diamond, 449. supra at
Determination dangerousness involves prediction future conduct rather defendant’s than mere characteri-
261 Nonetheless, defendant’s past conduct. zation of Ms past his future conduct. evidence as to prohahle conduct is important Miller, Misc. N. Y. 690, 702, In re 2d C f. 315, Y. It is 1972). 2d (N. Cty. appropriate substantial to the nature and seri weight the court give and its rela ousness of the crime committed defendant to his mental condition.12 tionship present
It should be
emphasized
while courts in deter
full
should take
mining dangerousness
advantage
expert
defendant,
and
the de
testimony presented by
the State
cision is not one that can he left
to the technical
wholly
of the
expertise
psychiatrists and
The deter
psychologists.
mination of
dangerousness involves
balancing
delicate
society’s interest in
from
protection
harmful conduct against
and
liberty
autonomy.
interest
personal
the individual’s
decision,
This
while
the court to make use of
requiring
ulti
testimony may
which medical
is
provide,
assistance
one,
Cady,
not a medical one.
mately
Humphrey
legal
Once the court
determined that defendant
others,
ill and is
himself or
it must
mentally
dangerous to
formulate an
order.
noted in
appropriate
As we
Carter, supra,
task,
this is an
difficult
calling
one
exceedingly
flexibility
of judicial
imagination.
degree
high
of restraint
impose
degree
of the order is
object
to rеduce the risk of
which
danger
necessary
upon
level. Doubts
an
must be resolved
acceptable
he poses
not, by
court should
hut the
public,
favor of protecting
prior
12EmpiricaI
suggest
an im
studies
criminal conduct
—
—
portant
perhaps
important
prediction
in the
factor
the most
Diagnosis
dangerous
Kozol,
Garofalo,
Boucher &
“The
future
conduct.
Deling., 371,
Dangerousness,”
Crime &
Treatment
—
supra
400;
generally, “Developments
(1972) ; Rubin,
see
Civil
Mentally Ill,”
Harv. L. Rev.
Commitment
any
liberty
autonomy
defendant’s
order,
upon
its
infringe
necessary
accomplish
reasonably
than appears
more
Nonetheless,
cannot be adequately
where the
goal.
public
restraint,
is jus
the court
by any
lesser
protected
practical
*22
an appro
tified in
institutionalized
ordering
Court
restraints
public psychiatric hospital.
imposed
priate
must,
course,
with
always
op
be coupled
corresponding
Carter,
supra
State v.
for
care and
portunity
treatment.
D.,
In re
D.
118 N.
393-94;
J. Super.
at
(App.
Donaldson,
v.
O’Connor
S.
Div.
U.
1966). Cf.
Wyatt
Stickney,
individualized with the focus on the not offense com- he the mitted, although such offense can as serve an indication of harm the patient capable inflicting. Perhaps important is the most is the psychiatric out-patient establishment of care. The conditions under patient certainly which the will live after release should be conducive recovery, very aggravate least, his to family or at the his condition. His friends, life and the area which he lives and work that he obtain, helpful, generally, could Weihofen, supra. it would be are all relevant. See depends, large upon extent, The success of conditional release ato adequacy supervisory imposed by the of the controls the courts to public safety. safeguarding insure the The most obvious condition for community against repetition the of criminal behavior is a careful follow-up required psychiatric and attendance for course, treatment over a period long frequency treating of time. Of the the visits to psychiatrist depend upon would the individualized circumstances of But, any event, psychiatrist continuously each case. the must evalu- patient’s adjustment anticipate, pre- the ate be able and thus psychotic episodes. Plainly, patient subject vent out-patient must be a fit Psychiatric compulsion treatment. treatment under the cooperation willing patient of a court order without of the would obviously counter-productive. ox institutionalization Orders, either requiring on subject restraints are to modification lesser imposing or less has more dangerous that defendant become grounds termination, on grounds than he or previously, was ill the motion he no on mentally dangerous, longer Where or the defendant.13 the court either de cause believe that non-institutionalized probable others, an or imminent to himself poses danger fendant have inade whether because restraints original proven terms because defendant with the complied has not quate, it changed, condition has order, because defendant’s for fur institutionalized temporarily order defendant may proceedings evaluation pending observation and ther Where defendant tem order. prior modification a hear circumstances, institutionalized under such porarily as should be order conducted on modification ing however, the commitment Once, is practical. promptly *23 proof preponderance by be of the evidence to 13The burden of by party seeking tbe the termination. borne modification or holding recognize represents from in that a our We this deviation Carter, conditional release that granted only convincing upon pi’oof by clear evidence to be was by patient a fit treatment. the that was candidate for such Under he decided, person prevailing a law at State v. Carter the involuntarily the time was by acquittal insanity following committed reason of finally proof by by prepondei’ance upon him a could released reason,” stringent standard that he had been “restored to a evidence simple dangerousness. by showing not be met a of lack that could of entirely for condi State v. Carter an different standard introduced dangerousness release, was a critical fac lack of tional one which proof inconsistency requiring ; lack dan we no of of tor and found gerousness by convincing for conditional release clear and evidence by preponder requiring proof only a of “restoration to reason” while consequence today’s A de the final of of release. ance evidence dangerousness ground of for final is that lack is now also a cision proof by convincing the To retain burden of clear and evi release. patient logically a in which dence would create might anomalous situation proof be to meet burden to establish himself able the of fit proof release, modify the burden final but be unable to meet upon him, imposed commitment order the restraints so as to reduce e., i. to obtain a conditional release. terminated, unconditionally order is he the defendant must thereafter like any treated other in person for purposes commitment. voluntary He in may be committed only by stitution of civil appropriate commitment un proceedings J. S. der N. A. 30:A-23 et seq. have chosen determination as to separate
We whether from may involuntarily defendant be committed determina tion or innocence and by jury guilt former placed in the hands of the trial question wholly judge, for decision trial, Eirst, after for two reasons.14 proofs pertinent likelihood harmful conduct fu ture altogether are different in substance and character from those pertinent or or guilt innocence to defendant’s in sanity Introduction of plea. such at trial proofs creates risk significant the jury may be may confused or be distracted from consideration of proper innocence, or guilt the principal before question Second, it. defend requiring ant to simultaneously argue to the both jury in he was time of the crime and that sane at the he is no longer men tally ill him in a places difficult dangerous and unfair fear will may reasonably tactical He that the position. jury оf not loath to reach verdict very by reason guilty he demonstrates he is insanity successfully longer no and must be released such dangerous upon verdict. This him fear well deter from may vigorously arguing present lack of sanity dangerousness under such circumstances. Franklin, In re supra Cal. 496 P. 2d Rptr. at 470; Wiehofen, “Institutional Ac Treatment Persons cf. Reason L. Rev. quitted Insanity,” Texas (1960). Separating issues frees defendant from *24 seq. nonjury 14CiviI commitment N. under J. S. A. 30:4-23 et are proceedings. empaneling jury proceedings of a for N. J. under wholly discretionary judge. S. A. 2A:163-2 is with At. the J. Const. (1947) I, expressely proceedings ¶ Art. 9 excludes such from the right Gibson, jury 384, (1954). v. State N. trial. 15 J. 390-91
265
potential unfairness. We
re-emphasize
merely
an interim procedure adopted
the Court and
be
by
is not to
understood as constitutionally
ex
compelled. See State
rel.
Schubert,
Kovach v.
612,
64 Wis. 2d
theAt initial jury trial the should no in be longer structed to render a as verdict to whether special defendant’s insanity should, however, continues. The trial in judge the struct as to jury the of a consequences verdict not guilty by reason of insanity so that does act jury not under mistaken impression defendant will neces freed be committed sarily indefinitely to mental in Harris, Bolton v. stitution. See at 651 supra n. 50. See States, v. generally Lyles United 103 22, S. D. U. C. App. F. 725, 2d C. Cir. cert. (D. 1957), denied U. S. S. L. Ed. 2d 1067 (1958), U. S. 4 L. Ed. (1960), U. S. 82 Ct. 7 L. S. Ed. 2d 529 (1962); Commonwealth Mutina, Mass., N. E. 2d 294 (1975).
Y In the interests of us it is clarity, appropriate attempt delineate the between our deci relationship Maik, sion J. in 60 N. today prior our decisions State Carter, State v. 64 N. J. 382 Maik, In State v. Court, supra, through Chief speaking Weintraub, Justice construed commitment definitively provisions of N. J. A. S. 2A:163-2 and 2A:163-3. Id. 60 N. J. at 216-21. The of these constitutionality provisions not was in challenged by that case and was parties in considered the Court its decision. We now conclude A. that the standards commitment established N. 2A:163-3, A. 2A:163-2 and J. S. construed Mailc, unconstitutional, State v. and, Court are extent, Mailc decision is overruled. *25 266 Carter, further elaborated Court supra, v. State Maik, ex and enunciated in State
the principles com of persons release them to conditional tended permit J. A. N. S. 2A:163-3. N. J. S. A. 2A:163-2 or under mitted to consider opinion no occasion its The had majority J. A. N. 2A:163- S. the provisions to possible challenges grounds. 2 N. J. A. 2A:163-3 on constitutional S. upon, Carter predicated decision State v. Since the of these commit of, the construction and is an elaboration Maik, hold out in the specific set State provisions ment the extent in only in that are but to superseded, ease ings con with our particularly consistent opinion, today clusion these are unconstitutional. provisions
VI did not receive in the case present Defendant time of his commit outlined above hearing type he was made at that time into whether ment. No inquiry or He since was in to himself others. fact dangerous Carter, release under State been conditional granted is, nonetheless, N. J. 382 He entitled to a (1974). hearing and, within mentally whether, as whether he is ill days to remain at permitted general large population restraints, he likely pose without some danger society. himself or to
VII today’s decided is whether final question who to other retroactively persons be applied should holding following confined mental institutions are to State presently such a insanity. The decision to give reason acquittal de effect is one that must retroactive holding prospective and the interests pend upon balancing Nash, 64 affected. State v. N. (1974); individuals Johnson, N. State v. J. 572 aff’d 384 U. S. 16 L. Ed. Linkletter v. (1966); Walker, U. 85 S. 14 L. Ed. 2d Darrow v. Hanover J. 410 Tp., *26 (1965); cf. who
Persons been to involuntarily have committed mental under an institutions standard suffer improper con tinuing injury, which extend into fu may the indefinitely ture. The effect of to today’s decision is not cast doubt merely upon the of sur adequacy safeguards procedural Johnson, rounding the decision see to State v. commit, but the upon correctness the decision itself. Fair very ness that further confinement of a demands person presently a upon committed be conditioned the showing by State he in can fact be committed under constitutionally proper standards. the numbеr Since of persons involved is com small,15 paratively applying holding retroactively poses little danger that administration of will im justice Nash, paired burdened. excessively generally See State v. supra.
We therefore conclude that today’s holding should be applied retroactively to persons presently committed to State mental institutions (or released from such conditionally Carter, pursuant institutions State supra) following by defendant, reason acquittal insanity, that, and like the they are entitled to commitment within 60 hearings days. Smith v. Robey, 57 Mich. 226 N. App. W. 2d 593 Cf. (Ct. App. 1975).
Reversed and remanded. J. in This (dissenting part). case represents
Cliffobd, my another in with chapter continuing my col- dialogue over the fundamental “burden of leagues issue in proof” Attorney 15The General has informed the Court that as June 27, 1975, only persons were confined to State mental institutions following acquittal by insanity. reason of voice I am constrained to civil commitments. involuntary Carter, 64 here, as in State concern my grave opinion), and dissenting (concurring (1974) mental pa a forward by recognizing rights step moving evi by two backward steps neglecting tients we not take The Court rights. those necessary safeguard rules dentiary an risk of doing precisely by applying runs the today sub silen burden overruling inappropriate proof have reasonable tio which called сases Jersey New those involuntary commitments. standard doubt of the essential resolution Court’s I While concur I now come grips, it has with which constitutional issues from following part the emphasized with disagree majority opinion: If, following hearing, shown court finds that mentally preponderance ill the evidence that * * * n society], danger likely pose should [to himself or to it *27 pro- liberty placed upon defendant’s so as to restraints order suitable appropriate public provide treatment defendant with tect the omitted). added; (emphasis [ante 257.] at footnote the evidence” must be language of
This “preponderance B. commitment, civil 4:74-7 governing our revised read into at our under the same time as was consideration which It now adopted on instant case. has been deliberations the per- to 1975. Rule reads September take effect as follows: part tinent Judgment (f) Commitment, Final of Review. If the court finds presented hearing
from [commitment] the evidence at the that the patient required by being is institutionalization of the reason of his danger community to himself or the he is not so confined and treated, judgment appropriate it shall enter a commitment of to an * * * institution. The Rule silent on burden being proof,1 of establishment of proof 1The decision to Rule leave the silent of on burden runs specific Suprеme counter to of the recommendation the Court Com Practice, report appears on mittee Civil whose N. J. L. J. 377 of the burden left is to case law. One effect appropriate decision is to burden today’s preponderance the bare apply sub judice, only to such as defend- cases the one where ant was of relieved criminal violent responsibility by act reason of also to other invol- insanity, his but all commitments. I untary dangerous- would proof require I a reasonable as to demon- beyond (which ness doubt hope been burden strate later in this the opinion always for involuntary civil proof requirement commitment), pref- referred supra. erably terms footnote But I am its ve- reluctant use this case in present posture hicle for that critical issue. deciding suggested language The Committee’s “If was the court finds beyond presented hearing a reasonable doubt from the evidence at the patient required by that institutionalization reason of probability patient being danger to himself the com- "" *”* munity (emphasis added). recognize I While course by recommendations, we are not bound our committees’ nevertheless significance thoughtful report it not without this Committee’s complete unanimity distinguished indicated its members on this point. language finally adopted, Rather than the of the Rule as whiсh proof, preferred all leaves reference to burden of I out would have by suggested Rutgers a version Professor Robert A. Carter of Law School, a member of the Committee. Professor Carter wrote to the Supreme upon receipt suggested Clerk of Court of a revision Rule, receipt report. made the Court after of the Committee’s “probability” That revised draft left out the element and called finding simply “dangerousness” beyond (the a reasonable doubt spectrum today’s other end of the from where decision leaves the matter). pointed sought Professor Carter out the Committee recognize between facts and the reasonable inferences be drawn might brought therefrom sharply a distinction which more into suggested focus alternative: finds, beyond doubt, If pre- the court a reasonable from evidence hearing, sented at the facts from which it can be inferred that *28 patient required by of institutionalization the reason his of * * being danger community to himself or the *. finding dangerousness I think the distinction beyond between a of finding beyond a reasonable and a doubt doubt reasonable of facts dangerousness may from which the reasonably likelihood of be in- proof ferred is real one and a standard of on based the latter is, urged by Carter, Professor a most workable standard. a consti- necеssity formulating of the I appreciate
While disposition persons workable procedure tutional and our in declaration insanity reason of light acquitted 2A:163-3, A. I would N. unconstitutionality the on with views of the parties have to be favored the preferred phase “burden of proof dangerousness” least the .at — was briefed issue never or argued That procedure. of re- way because all understandably, sought by a remand for the of deter- purpose lief this Court was his had mining if “condition to the improved extent he should be conditionally parties released.” never reached nor apparently even burden of contemplated proof the offered we should not follow why reason been issue. No per- for at least calling briefs our practice frequent on exercise oral To argument question. haps additional we when practice caution seems better that minimal law the established or start tread- to change either undertake soil, both of which we are here. on unfamiliar doing ing of our recent own administrative consequences The practical in the mental Rules, and area of directives, holdings revised health law are but dimly perceived. might expected, As most involved as intimately people participants have at this some early diver- legal process stage sharply of that itself and of roles process their gent perceptions Stanton, Compare therein. Civil “Involuntary Commitment Á View,” Trial J. L. J. 425 Judge’s Proceedings: with “Civil Singer, Commitment A Proceedings: ” View,’ ‘A Trial 98 N. J. Judge’s L. J. 553 Response parties invite the to share with should us their We However, under the I views. circumstances must announce benefit of without counsel’s research and my position persuasion. efforts at notion, established, now that for firmly with
I start which Pashman has forth Justice so set all the reasons aptly and to which he in his adverted majority opinion, Carter, Court in State 64 N. J. at for the opinion
271 the of our law treats one in this defendant 401, position any patient the as other invol way facing same precisely a one, commitment to mental institution. No I dare untary due in deny process would to that circumstance. say, people is a What “due” factual context “process” particular in in what interests involved. At large upon turns are part in stake any are the of involuntary security commitment and, other, the on hand on the community the one the pa “an tient’s of liberty, interest value.” transcending Speiser 525, 1332, 1341, U. S. S. Randall When personal liberty L. may Ed. be and the defendant of a possible stigma lost faces the conviction,2 Supreme the Court has criminal declared as that all imperative constitutional of elements of the proof cаse him be reasonable doubt. In re Win against beyond 358, 363-64, 397 U. ship, 1068, 1072-73, L. Ed. 2d 375 (1970).
Mr. Justice Harlan’s ex- concurring opinion Winship by meticulous basic poses analysis policy considerations which lead to selection of what standard of proof should in a given situation.3 our applied emphasizes He that Burger wrote, Judge Chief 2While Justice in 1964 when then a Circuit, arguments of the District him Columbia to “the on stigma guilty largely nonsense,” verdict are emotional “Psychiatrists, Lawyers, Courts,” Fed. Prob. pointed depressing members of that same court later evidence stigma involuntary associated with civil commitment is at stigma conviction, least as severe as the born of a criminal and ob- only “enlightened minority” persuaded served that an has been accept any physical mental illness a disease similar ailment of body. Ballay, App. re 157 U. S. D. C. 482 F. 2d (D. 1973). Cir. C. illuminating so unduly 3The discussion is I run the risk of burdening by setting part length: the reader forth it at some [Ejven though proof the labels used for alternative standards vague very guide are decisionmaking, sure the choice particular adjudication variety does, of the standard for a I think, very comparative reflect a fundamental assessment of the social costs of erroneous factual determinations. disutility of con view the social “not of laws does system disutility man to the an innocent as equivalent victing when and that personal somеone who guilty,” acquitting fact-finding error margin liberty jeopardy, *30 In re burden of proof. be reduced the increasing should S. 397 U. at Winship, supra, at S. Ct. In re D. C. Ballay, L. Ed. App. 380. See U. 2d F. C. Cir. (D. 1973). 2d begin by stating proposi- explain why so, two I I To think this fairly disputed. First, tions, in I neither of which can be believe dispute judicial proceeding a about facts in there the a which is unassailably event, acquire of some earlier the factfinder cannot knowledge happened. Instead, all the what factfinder accurate of intensity acquire probably happened. The a can belief of what — degree a is convinced that of this belief the to which factfinder — actually course, vary. given can, of In re- act occurred this a gard, proof attempt represents an the fact- a standard of instruct degree society concerning he finder the of confidence our thinks par- for of factual conclusions a should have in the correctness type “preponderance adjudication. Although phrases the ticular of “proof beyond quan- a reasonable doubt” are of the evidence” they titatively imprecise, communicate finder of fact do to the concerning degree expected of confidence he is different notions the in his factual to have the correctness of conclusions. really prоposition, nothing A second which is than a corol- more lary first, despite sometimes, is that trier of fact will wrong efforts, in In his be his factual conclusions. a lawsuit best parties, can in between two a factual error make a difference one ways. First, judgment it can in in of two result a favor of the plaintiff judgment true warrant a for when the facts the defend- analogue in a criminal case would of ant. be the conviction hand, On an innocent man. the other erroneous factual deter- an judgment a mination can result in for the defendant when the true justify judgment plaintiff’s analogue in The criminal facts favor. acquittal guilty be of a man. would proof frequency The standard of influences the relative of these If, types example, of for erroneous outcomes. the standard of two preponderance proof trial for criminal were of the evidence beyond proof doubt, than a reasonable there rather would be a freeing guilty persons, risk factual errors result in that smaller greater convicting risk factual errors result but a far proof comparative Because the affects the the innocent. standard types frequency outcomes, of erroneous these two choice applied particular litigation in a kind of the standard be com over to the carry analysis involuntary we Can рro can. The fact F I believe we context mitment than rather nature is "civil" commitment for ceeding Gault, U. S. In re obstacle. no presents "criminal” re Ed. 18 L. civil juvenile proceedings both Winship, involving the measure any suggestion have to rest nature, put to he afforded a must of due which process parades. under which the proceeding the label determined world, compara- should, in a an rational reflect assessment disutility tive of each. social assessment, for the reason different When one makes such an litigation proof opposed becomes as to criminal standards of in civil money parties apparent. private In a for civil suit between two general damages, example, no more serious in for it as we view than favor to be an verdict in the defendant’s there erroneous pre- plaintiff’s A an favor. to be verdict in there erroneous ap- peculiarly ponderance of the standard therefore seems evidence sensibly, requires propriate for, explained simply it most prob- “to fact is more trier of fact believe that the existence *31 may the [he] find in favor of able than its nonexistence before [judge] party persuade fact’s the who has the burden to the of existence.” hand, ease, In do not view social a criminal on the other we the convicting equivalent disutility dis- man as to the of an innocent guilty. utility acquitting As Mr. Justice Brennan of someone who is Speiser 513, Randall, 525-526, in U. S. wrote for the Court 1332, 1341-1342, 1460, (1958) 2 L. : 78 S. Ct. Ed. litigation margin error, representing always “There is in of parties finding, in which both must take account. error fact into — party transcending has at stake an interest of value Where one — liberty margin is of as criminal defendant his this error party process placing by him as on other the reduced * * * persuading of the fact-finder at the conclusion burden guilt beyond a trial of his reasonable doubt.” context, beyond requirement proof I view the a reason able in case as bottomed on a fundamental value doubt criminal society far to convict inno determination our that it is worse an guilty go only man cent man than let a free. It is because of acceptance nearly complete long-standing and of the reasonable- doubt standard not the States in criminal trials that the Court today explicitly process, to hold an before had that due as expression requires procedural fairness, fundamental a more ordinary stringent litiga standard for criminal trials than for civil original; (emphasis omitted). [397 at tion 369-72, footnotes U. S. 1075-1077, 378-81.] 90 S. Ct. at 2d at L. Ed. Ct., Mur el v. Baltimore See City Crim. U. S. 364, 92 32 L. Ed. 2d 796-97 (1972) J., (Douglas, Gault dissenting). stresses the restraint liberty to which the party is Mr. exposed. Justice Portas said: boy charged A boy is with misconduct. The is committed tо an' may institution liberty where he years. be restrained of It — consequence — no constitutional practical meaning and of limited the institution to which he is committed is called an Industrial that, School. The fact of euphemistic the matter however title, “receiving juveniles home” or an “industrial school” for is an institution of confinement in which the child is incarcerated for a greater building or lesser time. His world becomes “a with white * * walls, regimented washed routine institutional hours Instead of mother and father and sisters and brothers and friends and
classmates,
peopled by guards, custodians,
employees,
his world is
state
“delinquents”
anything
waywardness
confined with him for
from
rape
(footnotes omitted).
and homicide
[
Much more to me is that important element on which in In re Tamm focuses Judge Ballay, 482 F. 2d at 664-67, “the nature of the very evidence He presented.” discusses the difficulties implicit proving “dangerousness,” in both of the emphasized in Carter opinions and the ma herein. jority opinion as I see it point is that the im to err on the pulse psychiatrist is side of “dan finding *32 not, Carter, more often than see gerousness” State v. supra, N. J. 64 7 at n. and (concurring dissenting opin ; ion) the psychiatric in community is dis frequent on agreement conclusions, diagnostic see “The Diamond, Psychiatric Prediction of Dangerousness,” 123 Pa. L. U.
375
Rev.
Litwaek,
439
Ennis and
(1974);
“Psychiatry and the
Courtroom,”
Presumption
Expertise:
Coins in the
Flipping
2
L.
Rosenhan,
Rev. 693
“On
(1974);
Being
6
Calif.
Places,”
in
Sane
Insane
Clara
Santa
Law. 379 (1973);
in
and that
a determination of
making
dangerousness
(largely
undefined
even less susceptible of
than
proof
mental
illness)
finder
“may
fact
reflect clini
unduly
cal
definitions
conclusions rather than the appropriate
judicial exegeties and
re
community
Ballay,
values.” In
F.
at
2d
665. The difficulty in
making
crit
ical determination,
that defendant is
ill
mentally
and poses
restrained,
to himself or
danger
society
militates
in favor of the higher
beyond
burden of
proof
reasonable
doubt to reduce the
opportunity
error,
substantial
for
par
when,
here,
ticularly
as
error is loss
consequence
in
See,
addition to the cases
liberty.
recognized
ante
majority
footnote
representa
tive of the
trend
recent
a burden of
require
proof
evidence,
than bare
Davis v.
greater
preponderance
Watkins, 384 F.
Supp.
Lynch
D. Ohio
(N.
1974);
Baxley,
Supp.
386 F.
D.
(M.
Ala.
Denton
1974);
Commonwealth,
sal declaration of insanity resulting her commit- ment to the judge at Marlboro. The trial Hospital had found “the evidence preponderance *33 24 N. J. subject.” Su- insanity established proof remanded, reversed and per. at 409. The Division Appellate confinement, there that to continued pointing support out a “if she had to be is liberated showing person will her own or the or safety safety prop- probably imperil others,” with “a a in- erty reasonable doubt of person’s in favor.” Id. sanity be resolved her [to] W., re In J. on supra, held that the medical certificate of which in a involuntarily the basis was confined plaintiff was men mental hospital inadequate prove requisite Conford, tal conditions detention. justifying citing Judge Perry, “we supra, wrote bound to seek the clearest legis are lative authorization we can accord sanction judicial before factual liberty in personal given to the deprivation 225-26; and, situation,” significantly, 44 N. J. at Suрer. involved reasonable doubt liberty right “[w]here of the statute to the facts presented as the applicability Id. 226. subject.” should resolved in favor of the at In re of hateas activated Perry, supra, corpus writ New to secure the release of one confined to the proceedings Trenton. Jayne at Vice-Chancellor Jersey Hospital man sane was called to determine whether the was or upon whether, liberated, Perry insane. Specifically issue was or safety menace the of himself “likely appreciably was or of others.” 137 property Eq. person not, decided he was observing The court 164. “[e]er- involved, a reasonable doubt right liberty with the tainly Id. should be resolved his favor.” insanity of [Perry’s] aside, are to be cast have been they If precedents these deserve more statement of some new today, they than stan- mentioned almost unen- passing conspicuously dard its of the reasons for by analysis exposition cumbered adoption. judge final The trial is to make the crit- thought.
One Some may contend that dangerousness. ical determination will not differentiate between likely doing judge in so donbt, merely but will and reasonable bare preponderance with standard his happens comport announce whatever reaction; that under these circumstances viscerаl the two dissent which the distinction between emphasizes *34 burdens of theoretical and aca so much proof simply I a trial demic think that claptrap. response by type First, most with judge unlikely. that notion does not square confidence in the my intellectual bench honesty (I our to a record in one these wherein the look forward cases his and reflects on how he makes decision lets hearing judge guidance). Sec know whether sufficient being us he given case demon least one landmark ond, at the experience per was without jury, a trial judge, sitting strated that the requirements differentiating between fectly capable supra, In In re it is Winship, standards. respective be ability distinguish judge’s out that “the trial pointed standards doubt and tween preponderance] [reasonable he that he conceded him make a finding guilt enabled beyond made have under the standard might proof 367, 90 at reasonable doubt.” 397 U. S. at L. Ed. 377. at much of the I from so dissent presented
For the reasons committees to involuntary permit as would opinion Court’s of their con- deprived families their from be “taken the same standard under liberty protected stitutionally ac- negligence automobile run-of-the-mill applicable proof Ct., 407 U. S. City Baltimore Crim. Murel tions.” (Douglas, 2d at 794 2093, 32 L. at Ed. omitted). (footnote J., dissenting) Hughes, Justice and remandment —Chief For reversal and Judge Mountain, Pashman Justices Sullivan Coneoed —5. in part
Dissenting Clieeobd —1. —Justice